Matrimonial home rights: how to protect your right to occupy and other key questions answered

In a typical home rights case, a married couple (say, a husband and wife) reside in a freehold property where one of them (say, the wife) is the sole legal and beneficial owner.

Under section 33 of the Family Law Act 1996, so long as the property is or has been the family home, the husband in this scenario has the right not to be evicted or excluded from the property unless a court order is made to that effect. These protections are commonly referred to as matrimonial home rights.

Home rights also apply to civil partnerships.

Occupational Orders and Home Rights

Home rights can be terminated by the court if “in all the circumstances it is just and reasonable to do so” (sections 33(3) and 34(2) of the Family Law Act). When considering terminating home rights, the court will weigh up the following factors:

• The housing needs and resources of the parties and any relevant child.
• The parties’ financial resources.
• The likely effect of any order, or of any decision by the court not to exercise its powers on the health, safety or well-being of the parties and of any relevant child.
• The parties’ conduct.

(Section 33(6) of the Family Law Act.)

The parties must also be associated persons (sections 62 and 63 of the Family Law Act) and the applicant must show to the Court that the harm which will be suffered by the applicant or child if the order is not made is greater than that harm which would be suffered by the respondent if the order is made (‘the balance of harm test’).

These applications are common in situations of domestic abuse. More information about the protections available to victims of domestic abuse can be found about them here.

Registration of Home Rights

Home rights can be safeguarded by registering a notice on the Land Registry title register. Without this registration, home rights will not be enforceable against a third-party purchaser of the property.

If there is a sale of the family home without permission of both parties and in contemplation of divorce, the family court has powers to set aside or void transactions under section 37 of the Matrimonial Causes Act 1973.

Beneficial ownership vs legal ownership

It is common for one spouse to be the legal owner while both spouses hold a beneficial interest in the property. For instance, the spouse who is not the legal owner might have a beneficial interest under a common intention constructive trust (CICT). For more information on CICTs, see our previous article, Nilsson v Cynberg: express trusts over property and the validity of subsequent oral agreements.

A beneficial interest typically grants a standalone right to occupy the property, as well as share in the equity.

If you do not have a beneficial interest in your spouse’s property, you may nevertheless have a matrimonial claim to a share in that property. In a divorce, the Matrimonial Causes Act gives judges a wide discretion on the division of the matrimonial assets.  

Key questions regarding home rights:

Can my spouse temporarily evict me from the former matrimonial home if I have a beneficial interest in the property?  

Yes, they could apply for a court order to that effect.

The application would be made to the Family Court under section 33(d) of the Family Law Act. The Family Court can prohibit, suspend or restrict a beneficial owner’s right to occupy the property. Such prohibitions/ restrictions are usually made in the context of domestic abuse, because of the requirements of the ‘balance of harm’ test.

Can my spouse permanently evict me from the former matrimonial home if I have a beneficial interest in the property? 

Yes, they could apply for a court order to that effect. For example, your spouse may want the property to be sold with vacant possession to pay pressing debts or legal fees, pending the outcome of financial remedy proceedings.

Recent case law indicates that the application would need to be made under sections 13-15 of the Trusts of Land and Appointment of Trustees Act 1996 (“TOLATA”). However, caution should be taken before issuing such an application, especially if there are on-going financial remedy proceedings. In Miller-Smith v Miller Smith [2010] 1 FLR 1402, Lord JusticeWilson (as he then was) was reluctant to recommend the use of TOLATA to obtain an interim order for sale, on the basis that to do so would be to look at only one part of the overall picture.

Should I register home rights at the Land Registry if I already have a beneficial interest in the property?

Care should be taken before applying to the Land Registry in this scenario. This is illustrated by the case of Mehers v Khilji [2023] EWHC 298 (Ch).

Ms Khilji claimed a one-third beneficial interest in the former matrimonial home under a CICT. She had previously protected her home rights by registering a notice on the title register. Her opponent argued that if she truly had a beneficial interest, there would have been no need to register her right to occupy using a home rights notice.

The court appeared to find this argument persuasive, and the presence of the home rights notice undermined the credibility of Ms Khilji’s claim to a beneficial interest. (This would not undermine any matrimonial claim, which operates beyond distinctions of legal or beneficial ownership and looks at achieving financial settlements based on need and fairness from all assets held by either party, regardless of the ownership status).

To avoid such complications, there are ways to mitigate the risk. For instance, when submitting the application to the Land Registry, you could state in the covering letter that the application is without prejudice to your position that you have a beneficial interest in the property.

What if neither spouse owns the property, and instead one of them is the tenant under an assured shorthold tenancy?

This was the situation in in Derwent Housing Association Ltd v Taylor [2016] EWCA Civ 508. The wife was the sole tenant of a dwelling house let under an assured shorthold tenancy, which she shared with her husband.

The husband argued that his home rights prevented the landlord from recovering possession and that, after his wife left the property, he effectively stepped into her position as the tenant.

The Court of Appeal rejected that argument, holding that the husband’s home rights ended when the wife validly terminated the tenancy.

If a tenancy is held in one spouse’s name, or in both names but can be unilaterally terminated by a notice to quit, the other spouse may wish to consider applying to court for an injunction, either under the Matrimonial Causes Act (in event of relationship breakdown) or via an alternative route in the civil court. This can prevent or delay their spouse from terminating the tenancy prematurely.

What happens if the property is owned by multiple people?

A non-owning spouse retains home rights in this scenario. However, these rights cannot be protected by a notice on the title register unless the owning spouse is the sole person entitled to the sale proceeds from the property.

For example, consider a property occupied by Bandit and his wife, Chilli, as their home. Bandit and his brother, Radley, are the joint legal owners, but Bandit is the sole beneficial owner. In this case, Chilli can protect her home rights at the Land Registry if she provides sufficient evidence that Bandit is the sole beneficial owner.

In contrast, if Radley also holds a beneficial interest in the property, Chilli cannot register her home rights at Land Registry.

Other forms of notice can be secured against the property, particularly in the case of relationship breakdown, to notify any third-party purchasers where such a property is a matrimonial asset. Remedies exist under the Matrimonial Causes Act if the property is dealt with in a way that is intended to dissipate the value of the matrimonial pot.