Practice Guide 20 – Applications under the Family Law Act 1996

Updated: October 2011

Update

This edition of the guide replaces the November 2008 edition. Amendments have been made as a result of the Land Registration (Amendment) Rules 2011, which change the definition of ‘conveyancer’ to make it consistent with the Legal Services Act 2007.

Scope of this guide

This guide gives advice on how to protect, renew or cancel a spouse’s or civil partner’s home rights arising under the Family Law Act 1996 as amended by the Civil Partnership Act 2004. It also covers official searches made by registered mortgagees to reveal the existence of such rights. It is aimed at conveyancers and you should interpret references to ‘you’ accordingly. Land Registry staff will also refer to it.

1 Abbreviations and terms used

In this guide:

‘conveyancer’ means an authorised person within the meaning of s.18, Legal Services Act 2007 who is entitled to provide the conveyancing services referred to in paragraphs 5(1)(a) and (b) of Schedule 2 to that Act, or a person carrying out those activities in the course of their duties as a public officer. It also includes an individual or body who employs or has among their managers such an authorised person who will undertake or supervise those conveyancing activities (r.217A, LRR 2003)

‘FLA 1996’ means the Family Law Act 1996 as amended by the Civil Partnership Act 2004

‘home’ means the matrimonial or civil partnership home to which the home rights attach

‘LRR 2003’ means the Land Registration Rules 2003

‘the spouse or civil partner’ means the applicant whose rights of occupation in the dwelling house constituting the home are in need of protection or renewal

‘the other spouse or other civil partner’ is the owner of the home.

2 Introduction

The main purpose of the FLA 1996 is to protect the right of a spouse or civil partner to occupy the home. This right is not an overriding interest but constitutes a charge on the home that can be protected in the register by an agreed notice (r.82, LRR 2003). Prior to 14 February 1983, such a charge could also be protected in the register by a caution. The charge arises on whichever is the latest of:

• the date when the other spouse or other civil partner acquires the home

• the date of the marriage or civil partnership

• 1 January 1968

although it is not anticipated that protection for it will be sought until the marriage or civil partnership appears to be in jeopardy.

No protection under the FLA 1996 is required in cases where the home is held jointly, both legally and beneficially, by the spouse or civil partner and the other spouse or the other civil partner.

If the spouse or civil partner has home rights in relation to the other spouse’s or civil partner’s interest under a trust, notice of the charge can only be registered if there are no persons, living or unborn, who are or could become beneficiaries under the trust. (Ss.31(4), (5) and (13), FLA 1996.) This means that if the land is held on trust, we will need to be satisfied that no one other than either spouse or civil partner has an interest in the trust.

3 Is the estate or interest in the home registered?

It is essential to know whether the other spouse’s or other civil partner’s estate or interest in the home is held under a registered or an unregistered title.

If it is held under an unregistered title, application must be made to the Land Charges Department for the registration of a Class F land charge – see section 16 Unregistered land.

If it is held under a registered title, the registration of a Class F land charge is ineffective to protect the spouse’s or civil partner’s rights of occupation. An application to register a notice must be made – see section 5 Application for notice.

If it is not known whether the other spouse’s or civil partner’s estate or interest in the home is registered, an application for an official search of the index map should be made to the appropriate Land Registry office using form SIM. See Practice Guide 10 – Official searches of the index map for further details.

When a search of the index map is made in connection with an application under the FLA 1996, it is important that the following note is written across the top of the form SIM:

“This search is being made solely for the purposes of the Family Law Act 1996 as amended by the Civil Partnership Act 2004.”

This will enable us to:

• avoid raising any points as to the precise boundaries of the property that might otherwise arise

• supply particulars of any lease.

The official certificate of the result of search will be issued by us within a day or two of the application being received and will reveal any registered estate(s) or interest(s) in the home.

4 Application forms

The following application forms are prescribed by the LRR 2003.

• Form HR1. Application for registration of a notice of home rights (r.82, LRR 2003). See section 5 Application for notice and section 6 Rights continued by order of court.

• Form HR2. Application for renewal of registration in respect of home rights (r.82, LRR 2003). See section 7 Renewal of protection.

• Form HR3. Application by mortgagee for official search in respect of home rights (r.158, LRR 2003). See section 13 Official search by mortgagee.

• Form HR4. Application to cancel a home rights notice. See section 9 Application to cancel a notice.

5 Application for notice

When the title to the other spouse’s or other civil partner’s estate or interest in the home is registered and the spouse or civil partner has rights of occupation that are a charge on the property under the provisions of ss.31(2) or 31(5), FLA 1996, application should be made using form HR1 to protect the charge by the entry of an agreed notice in the registered title.

No fee is payable.

The priority of the application may be reserved by lodging an outline application. See Practice Guide 12 – Official searches and outline applications for further details.

6 Rights continued by order of court

A spouse’s or civil partner’s rights of occupation under the FLA 1996 will normally continue only during the subsistence of the marriage or civil partnership (see section 8 Cessation of rights). However, s.33(5), FLA 1996, provides that in the event of a matrimonial dispute or estrangement, the court may make an order during the subsistence of the marriage or civil partnership, directing that the spouse’s or civil partner’s home rights shall continue even though the marriage or civil partnership may come to an end.

If the court makes such an order and the spouse’s or civil partner’s rights have not already been protected, application should be made as soon as possible to register a notice in accordance with the FLA 1996. (If the rights are already protected in the register, see section 7 Renewal of protection.) The application should be made using form HR1. An office copy of the court order must accompany the application and will be retained by us. Alternatively, where a conveyancer is acting, the certificate in panel 10 of form HR1 may be completed in lieu of production of the court order.

No fee is payable.

The priority of the application may be reserved by lodging an outline application. See Practice Guide 12 – Official searches and outline applications for further details.

7 Renewal of protection

If the court makes an order under s.33(5), FLA 1996 when the spouse’s or civil partner’s rights are already protected in the register by a notice or a caution, application should be made as soon as possible to renew the earlier protection in case the other spouse or civil partner attempts to cancel it without disclosing the existence of the court order.

The application should be made using form HR2 and must be accompanied by an office copy of the order. Alternatively, where a conveyancer is acting, the certificate in panel 8 of form HR2 may be completed in lieu of production of the court order. The renewal will be effected in the register by the entry of an agreed notice. This renewal of registration does not affect the priority of the original charge (paragraph 4(5), Schedule 4, FLA 1996).

No fee is payable.

The priority of the application may be reserved by lodging an outline application. See Practice Guide 12 – Official searches and outline applications for further details.

8 Cessation of rights

A spouse’s or civil partner’s rights of occupation may be brought to an end in the following ways.

• By the death of either spouse or civil partner (s.31(8)(a), FLA 1996), but see section 6 Rights continued by order of court and section 7 Renewal of protection as to the power of the court to make an order under s.33(5), FLA 1996.

• By the ending of the marriage or civil partnership otherwise than by death (s.31(8)(b), FLA 1996), but see section 6 Rights continued by order of court and section 7 Renewal of protection as to the power of the court to make an order under s.33(5), FLA 1996.

• By an order of the court (paragraph 4(1), Schedule 4, FLA 1996).

• By the spouse or civil partner voluntarily releasing the rights in writing (paragraph 5(1), Schedule 4, FLA 1996).

9 Application to cancel a notice

An application to cancel a notice must be made in form HR4, accompanied by the appropriate evidence confirming one of the events described in section 8 Cessation of rights. The evidence should consist of:

• a death certificate

• an office copy of the decree absolute of divorce or nullity

• an office copy of a court order ending the home rights

• an office copy of the final dissolution, nullity or presumption of death order, or of the separation order, relating to the civil partnership

• a release of the home rights, signed by the spouse or civil partner and either made by letter or using form HR4.

If the court has made an order under s.33(5), FLA 1996 that is referred to in the register (see section 6 Rights continued by order of court and section 7 Renewal of protection), it will also be necessary for the applicant to supply satisfactory evidence that this order has ceased to have effect (see paragraph 4(2)(b), Schedule 4, FLA 1996).

No fee is payable.

10 Application to cancel a caution

An application to cancel a caution may be made in one of the following ways.

• By letter, accompanied by the appropriate evidence confirming one of the events described in the first three bullet points of section 8 Cessation of rights.

If the court has made an order under s.33(5), FLA 1996 that is referred to in the register (see section 6 Rights continued by order of court and section 7 Renewal of protection), it will also be necessary for the applicant to supply satisfactory evidence that this order has ceased to have effect (see paragraph 4(2)(b), Schedule 4, FLA 1996).

• By a withdrawal of the caution under r.222, LRR 2003, using form WCT, signed by the spouse or the spouse’s conveyancer.

• By a cancellation of the caution under r.223, LRR 2003 by the other spouse, using form CCD.

No fee is payable.

11 Service of notice on registered owner

Notice is always served on the registered proprietor on any application to enter or renew a home right.

12 Protection restricted to one home only

A spouse’s or civil partner’s rights of occupation may only be protected in respect of one home at any one time, whether the other spouse’s or civil partner’s estate or interest in the home is held under a registered or unregistered title (paragraph 2, Schedule 4, FLA 1996). A conveyancer must, therefore, ascertain whether their client already has any protection under the FLA 1996 and the position must then be disclosed in form HR1.

13 Official search by mortgagee

Under s.56, FLA 1996 a mortgagee of a dwelling house who brings an action for the enforcement of their security must serve notice of the action on a spouse or civil partner whose rights of occupation are protected at the relevant time by either:

• a Class F land charge (in the case of unregistered land)

• a notice or caution (in the case of registered land).

A mortgagee of registered land may apply using form HR3 for an official search to reveal if there is a notice or caution registered to protect a spouse’s or civil partner’s rights of occupation. Form HR3 must be delivered to the appropriate Land Registry office. For the purposes of s.56(5), FLA 1996, the search will carry priority for a period of 15 days.

See the current Land Registration Fee Order for the fee payable.

If the dwelling house is unregistered, the mortgagee should make an official search at the Land Charges Department using form K15 – see section 16 Unregistered land.

14 Rights of occupation of a bankrupt

A bankrupt spouse or civil partner who is entitled to occupy a dwelling house by virtue of a beneficial estate or interest has rights of occupation as against the trustee in bankruptcy in the circumstances outlined in s.337, Insolvency Act 1986. This applies whether or not the bankrupt’s spouse or civil partner has any rights of occupation under the FLA 1996.

A notice of the bankrupt’s right of occupation may be entered in the register provided the application (using form HR1) is amplified to state that:

• the bankrupt applies under s.337, Insolvency Act 1986

• the bankrupt’s interest in the property is now vested in the trustee in bankruptcy (who should be named).

15 Address of Land Registry office to which an application is to be sent

The application should be sent to the Land Registry office serving the area in which the home is situated. The application is not deemed to be delivered until it is received at the proper office as shown in the current Land Registration (District Registries) Order.

See Practice Guide 51 – Areas served by Land Registry offices, which contains a complete list of all areas of local government in England and Wales and indicates the Land Registry office currently serving each area.

16 Unregistered land

All applications under the FLA1996 in respect of unregistered land should be sent to:

The Superintendent
Land Charges Department
Seaton Court
2 William Prance Road
Plymouth
PL6 5WS

(DX8249 Plymouth 3)

Telephone: 0300 006 6666

17 Enquiries and comments

If you have a particular concern that is not covered by this guide, please contact Land Registry in advance of the transaction – see Contact details. If the transaction is particularly complex, it may be better if you make your enquiry in writing at the Land Registry office that will process your application.

If you have any comments or suggestions about our guides, please send them to:

Central Operations Group
Land Registry
Trafalgar House
1 Bedford Park
Croydon
CR0 2AQ

(DX 8888 Croydon 3)

You can obtain further copies of this and all our other guides together with copies of Land Registry forms free of charge from Customer Support (see Contact details) or you can download them from our website.

Remember

• Is the estate or interest in the home registered?

• Have you used the correct form for your transaction?

• Have rights of occupation already been protected in respect of another home?

• Where applicable, have you either enclosed the appropriate court order or completed the appropriate conveyancer’s certificate referred to in forms HR1 and HR2?

• Where applicable, have the correct fees been paid?

Please note that Land Registry may be unable to process applications that are incomplete or defective and your application will risk losing its priority if we have to return it to you – see Practice Guide 49 – Return and rejection of applications for registration for more information.