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Public Guide 4 – Protecting home rights under the Family Law Act 1996

Updated: January 2014

Update

This edition of the guide replaces the October 2013 edition. Sections 4 and 12 have been amended to show a revised address for Land Registry applications.

Scope of this guide

This guide is aimed at members of the public. It explains the process by which a husband, wife or civil partner can apply to Land Registry to protect their rights of occupation to the matrimonial or civil partnership home.

1 Abbreviations and terms used

In this guide:

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

'spouse' means your husband or wife

'your rights' means the statutory home rights you have in your home.

2 Introduction

This guide gives advice on how a husband, wife or civil partner should apply to Land Registry to protect their rights of occupation to the matrimonial or civil partnership home. It is not intended to be a full statement of the law relating to matrimonial or civil partnership property and, if you need further advice or help, you should contact a solicitor or the Citizens Advice Bureau.

2.1 The purpose of the Family Law Act 1996

One purpose of the FLA 1996 is to protect rights of occupation of a husband or wife in respect of the matrimonial home. These rights are especially important if your spouse has left you or your marriage is in danger of breaking up. The FLA 1996 protects you against anyone who might acquire an interest in your matrimonial home from your spouse, such as a purchaser, and ensures that they cannot force you out of your home. Another purpose of the FLA 1996 is to reassure potential purchasers that they can safely buy a home free from any possible matrimonial home rights, if no such rights have been registered.

The Civil Partnership Act 2004 gave a civil partner the same rights of occupation as a spouse.

2.2 When your rights commence

If your home is, was or was intended to be a matrimonial or civil partnership home and your spouse or civil partner is entitled to live there as the sole owner (see section 2.4 Your spouse’s or civil partner’s interest) then, under the FLA 1996, your rights take effect as a charge on your spouse’s or civil partner’s interest in the home on the latest of the following dates.

  • The date when your spouse or civil partner acquired the home.

  • The date of your marriage or civil partnership.

  • 1 January 1968 (the commencement date of the Matrimonial Homes Act 1967).

Your charge will continue only while your marriage or civil partnership lasts, unless there is a court order to the contrary. If this is the case, see section 6 What to do when the court has made a continuation order.

2.3 Protecting your rights

Unless you protect your rights by registration they cannot be enforced against certain people who acquire an interest in the home, such as a purchaser. The method of protecting your rights will depend upon whether or not your spouse’s or civil partner’s ownership of the home is registered at Land Registry. The first thing to do is to find out the nature of your spouse’s or civil partner’s interest. For example, is it freehold, leasehold or a short tenancy (see section 2.4 Your spouse’s or civil partner’s interest)?

The next step is to find out if your spouse’s or civil partner’s interest in the home is registered or unregistered (see section 3 How to find out whether or not your spouse's or civil partner's home is registered at Land Registry). If your spouse's or civil partner’s interest in the home is registered with Land Registry, a notice in the register can protect your rights. If your spouse's or civil partner's ownership of the home is not registered, you can protect your rights by a Class F Land Charge at the Land Charges Department.

If you think that your spouse or civil partner is about to do something without your knowledge and consent, such as sell or mortgage the home in which you have rights, it is vital that you protect those rights.

2.4 Your spouse's or civil partner's interest

Your spouse's or civil partner's interest in the matrimonial or civil partnership home (whether or not it is mortgaged) may be the ownership of the freehold or a lesser interest, such as a lease or a short tenancy. To protect your rights, you must first find out whether the ownership of that interest in the home is registered with Land Registry. This is important because registration of your rights in the wrong place will not protect you. You should note that a tenancy agreement or a lease for seven years (or less) cannot be registered at Land Registry. Longer leases, or freehold ownerships may be, but are not necessarily, registered there.

Each separate interest in a home is registered under a different number known as a title number. Just because one interest in a home is registered, it does not mean that all the others are. It is now quite common for a home to be jointly owned by the husband and the wife or civil partners, whether or not it is registered, and whether or not it is mortgaged. If this is the case, then you have rights of occupation simply through your co-ownership. In such a case, no action is needed under the FLA 1996 and the following sections will not apply to you. You may, however, need to see a solicitor to find out how to enforce your rights.

3 How to find out whether or not your spouse's or civil partner's home is registered at Land Registry

You may already know if your spouse’s or civil partner’s interest in the home is registered and, if it is, the title number under which it is registered. If you do not have this information and are unable to find out by other means, you should lodge an application in form SIM (see Public Guide 1 – A guide to the information we keep and how you can obtain it). When applying, it is essential that you write across the top of the form:

"This search is being made solely for the purposes of the Family Law Act 1996."

You will be told the title number under which any interest in the property is registered, including any registered lease; you will also be told if the property is not registered. Land Registry will post the reply within a day or two of receiving the application.

If the home is registered, you should follow the steps given in section 4 What to do if the home is registered at Land Registry. Please make sure that you have the title number of the correct interest in the home first. If your spouse’s or civil partner’s interest in the home is not registered, you should follow the steps set out in section 5 What to do if the home is not registered at Land Registry.

4 What to do if the home is registered at Land Registry

You should post application form HR1 to:

Citizen Centre
Land Registry Wales Office
Tŷ Cwm Tawe
Phoenix Way
Llansamlet
Swansea
SA7 9FQ

No fee is payable. If the application is in order, a notice will be registered and you will receive a letter saying that this has been done. Land Registry usually completes this sort of application within a week.

You should be aware that Land Registry will send a notice to your spouse or civil partner informing them that you have made an application.

5 What to do if the home is not registered at Land Registry

The Land Charges Department only keeps limited records of matters affecting legal titles against the name of the current owner. If the home is not registered, you should apply for an entry to be made against your spouse's or civil partner's name. To do this, post application form K2 to the Land Charges Department (see section 12 General information). The fee is £1. If the application is in order, you will be notified within a day or two that a Class F Land Charge has been registered against the name of your spouse or civil partner.

The Land Charges Department will not tell your spouse or civil partner that you have made an application. Any subsequent search against the name of your spouse or civil partner, however, would reveal the entry and so your spouse or civil partner may find out that you have protected your interest. Anyone may search these records at any time and a search is routinely undertaken when a property is sold.

6 What to do when the court has made a continuation order

Your rights normally last only as long as the marriage or civil partnership. They will be brought to an end by the death of either you or your spouse or civil partner, or in the event of a divorce, annulment or dissolution. In the case of a dispute or estrangement, however, the court may make an order that your rights are to continue even though your marriage or civil partnership has come to an end.

If the court makes such an order and your rights have not already been protected by registration (either in Land Registry or at the Land Charges Department), you should apply as soon as possible for protection. To do this, use form HR1 if the home is registered (see section 4 What to do if the home is registered at Land Registry) or form K2 if it is not registered (see section 5 What to do if the home is not registered at Land Registry). You must give details of the court order on the application form and, in the case of an application using form HR1, you must also supply an official copy of the court order. Alternatively, if you are using a solicitor to help you, they may lodge a certificate stating that they hold a copy of the court order.

If your rights have already been protected by registration before the court makes an order, you should apply as soon as possible to renew the earlier registration so that the court order can be officially recorded. Use form HR2 in the case of a registered home or form K8 in the case of an unregistered one. No fee is payable if you are using form HR2. A fee of £1 is payable when you use form K8.

7 Keeping your name and address(es) up to date

Once an entry has been made in the register, we will use the name and address(es) shown in the register when we need to contact you. It is important that you receive and respond to our communications promptly; your rights could be affected if you do not. It is vital that you keep your name and address(es) in the register up to date. If your details change, you should write to Land Registry and ask for the register to be altered. Proof of any change of name (for example, a deed poll) should be supplied. No fee is payable.

8 Cancelling the registration when your rights have been brought to an end

Your rights may be brought to an end in any of the following ways.

  • By the death of you or your spouse or civil partner.

  • Upon divorce or the annulment of the marriage, or dissolution or nullity of the civil partnership (see section 6 What to do when the court has made a continuation order).

  • By an order of the court.

  • When you voluntarily release your rights in writing.

When one of these things happens, an application should be made to cancel the entry protecting your rights. When you submit the application, you must supply evidence proving the relevant facts, such as the death certificate of your spouse or civil partner. If an order of the court has been made, as described in section 6 What to do when the court has made a continuation order, proof will be needed that the order has ceased to have effect before the registration can be cancelled.

In the case of an unregistered home, you should apply to our Land Charges Department using form K13 to cancel an existing Class F land charge, and follow the instructions on that form. The fee is £1.

In the case of a registered home, you can apply to cancel a notice entered at Land Registry by completing form HR4. Send your completed form to Land Registry and enclose evidence of the matters listed at the beginning of this section. If your rights were protected by a caution, you can cancel it by writing to us and sending the evidence. You can also apply to withdraw such a caution by sending in form WCT signed by you or your solicitor.

9 Only one protection is allowed at any one time

You are only allowed to protect your rights for one home at a time – the home you occupy or wish to occupy – in either Land Registry or the Land Charges Department. If there are two homes and you live in one and have protected your rights to it, but now wish to move them to the other home, you can do this by making a fresh application. The application forms (form HR1 and K2) require you to disclose whether or not there has been any previous protection and, if so, to give details of it so that it may be cancelled.

10 Bankrupt's rights

In certain circumstances a spouse or civil partner who:

  • is made bankrupt

  • who has custody of minor children, and

  • is entitled to occupy the home

may be able to register a notice under the FLA 1996 when their estate or interest has vested in their trustee in bankruptcy. This is a very complex matter and it is suggested that you contact a solicitor or Citizens Advice Bureau if you find yourself in this position.

11 Forms

You can make an application to register your rights by completing a form and posting it to the appropriate address – see Contact details. The following is a list of the forms that you might need for your application.

Land Registry forms (for registered property)

Form SIM

Application for official search of the index map to check – whether the property is registered

Form HR1

Application for registration of a notice of home rights

Form HR2

Application for renewal of registration in respect of home rights

Form HR4

Application to cancel a home rights notice

Form AP1

Application to change the register

Form WCT

Application to withdraw a caution

Land Charges forms (for unregistered property)

Form K2

Application for Registration of a Class F Land Charge

Form K8

Application for Renewal of a Registration of a Class F Land Charge

Form K13

Application for Cancellation of a Class F Land Charge

All of these forms can be downloaded from our website free of charge or purchased from any branch of The Stationery Office or through a law stationer or law bookseller.

12 General information

Postage must be prepaid on every application.

Applications made to the Land Charges Department, wherever the property is located in England and Wales, must be sent to:

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

Telephone: 0300 006 6666

Applications made to Land Registry should be sent to:

Citizen Centre
Land Registry Wales Office
Tŷ Cwm Tawe
Phoenix Way
Llansamlet
Swansea
SA7 9FQ

You can also contact Customer Support at customersupport@landregistry.gsi.gov.uk or telephone 0844 892 1111, or 0844 892 1122 for a Welsh-speaking service, from Monday to Friday between 8am and 6pm.

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