When a relationship breaks down, one of the big concerns for separating couples is the home that they are both living in.
Challenges can surface when the house is held in the sole name of one of the parties. Questions arise as to whether the non-owner spouse has any legal rights to stay in the property, or any interest in the property altogether.
In this article, our family solicitors will explore the following topics:
- What are home rights?
- Who has home rights?
- How do I protect my home rights?
- How long does a Home Rights Notice last?
- Can I be forced to leave the property?
- What if we are not married?
What are home rights?
When a couple is married or in a civil partnership, both parties have a right to live in the home that they share together – even if the property is held in one party’s sole name. This is known as ‘home rights’.
Home rights protect the rights of a spouse or civil partner to occupy the matrimonial home even if they are not a legal owner of the property, as long as they are legally married or in a civil partnership. They are designed to prevent the non-owner and any dependent children from being excluded from the home on separation, and secures them the temporary right to continue living there until the divorce is finalised.
Home rights only apply to the matrimonial home. Non-owners do not have the same protection when it comes to rental properties.
Who has home rights?
Home rights apply to married couples and civil partners.
They do not apply to unmarried cohabiting couples, regardless of the amount of time they have lived together.
How do I protect my home rights?
The non-owning spouse can protect their home rights by registering a Home Rights Notice with the Land Registry, using form HR1. There is no fee to register a Home Rights Notice with the Land Registry, and the non-owner does not require the consent of the owning spouse in order to register the notice. The owning spouse will however be notified by the Land Registry once the notice has been applied for.
HR1 forms can be used for registered land. However, if the land is unregistered, the non-owner can register a Class F Land Charge in the alternative.
Once registered, the notice prevents the owning spouse from selling, transferring or mortgaging the home without the non-owner’s knowledge, and gives the non-owner the legal right to live in the home (unless a court order states otherwise). It will ensure that any prospective buyers or mortgage lenders are informed that the non-owner has a potential interest in the property.
It is important to be aware that a Home Rights Notice does not give the non-owner any legal ownership of the property, nor does it give the non-owner the right to sell or let the property themselves.
What if I do not register a Home Rights Notice?
If a Home Rights Notice is not registered on property, the owning spouse could try and sell the property, which would potentially render the non-owner homeless.
In such cases, it is possible to make an application to the court to freeze the sale proceeds so that the non-owner is not disadvantaged longer-term.
How long does a Home Rights Notice last?
A Home Rights Notice will remain in place until the marriage has legally ended (on the granting of the final order of divorce, or decree absolute as it was previously known), the death of the non-owning party, or when the notice is formally removed by the non-owning spouse, either by written consent or through a court order.
Can I be forced to leave the property?
In some cases, the court may be asked to decide who should stay in the home on separation. This may be relevant when living in the home together is no longer appropriate, or in cases of domestic abuse.
The court has the power to make an ‘occupation order’ which is an order granting one spouse the exclusive right to remain in the home for a set period, regardless of who owns the property.
What if we are not married?
As set out above, home rights do not apply to cohabiting couples that are not married. Unmarried couples have fewer automatic rights of occupation compared with married couples. The non-owner usually has the status of ‘bare licensee’ which means that they are only entitled to remain living in the property as long as the owner gives them permission to do so. All that the owner is required to do is give ‘reasonable notice’ if they want the non-owner to vacate the home.
The non-owner would need to consider other legal avenues in this case, including whether they can establish a beneficial interest in the property. It is advisable to take legal advice at an early stage in such cases.
If you are currently going through a divorce or separation, our specialist family solicitors can advise on your rights in relation to property and can assist you with applying for a Home Rights Notice.
For sensitive, confidential advice, contact our expert family lawyers by emailing family@mincoffs.co.uk, or by calling the office on 0191 281 6151.
