This page is targeted at housing professionals. Our main site is at www.shelter.org.uk

Rights to occupy the home

This content applies to England & Wales

Rights to occupy the home of people who are married or in a civil partnership.

Introduction to rights to occupy

Where a couple are married or in a civil partnership, and the property is in one name only, both partners have legal rights to occupy the matrimonial home regardless of who is the owner. The owner spouse or civil partner has the right to occupy because s/he is the legal owner of the property. The non-owning spouse or civil partner has the right to occupy because s/he has 'home rights' (formerly known as 'matrimonial home rights') under family law. These rights will continue until the marriage or civil partnership ends unless extended by the courts (by an occupation order – see the page on Occupation orders under FLA 1996 for details) and as long as the owning spouse or civil partner has a legal right to occupy the home.[1]

In some situations, the non-owning spouse or civil partner may be able to establish that s/he also has rights arising from property law that may give her/him a right to remain and/or a financial stake in the property.

Home rights (also known as matrimonial home rights)

Whilst the marriage or civil partnership is still in existence, the non-owning spouse or civil partner occupies the matrimonial home as if s/he were the owner, without having the actual status of an owner.

The non-owning spouse or civil partner has the right to:

  • occupy the matrimonial home and not to be excluded, except by court order[2]
  • (if not occupying the home), obtain a court order to regain entry and to live there[3]
  • register rights of occupation as a charge on the property[4]
  • occupy the home as if s/he were the owner
  • pay the mortgage or other outgoings that are to be treated as if paid by the owner.[5] This gives a right to pay the mortgage, but does not mean that the non-owning spouse or civil partner can be held legally liable for the owner's arrears, unless a court order has been made transferring liability[6]
  • apply to be joined in any mortgage possession proceedings taken against the spouse[7]
  • be notified by the lender of any possession action, provided that matrimonial home rights have been registered[8]
  • apply for an order to provide that the matrimonial home rights are not brought to an end by death or termination of the marriage.[9]

Definition of matrimonial home

Home rights apply to a home that:[10]

  • has been lived in jointly by a married couple or civil partners as their matrimonial home
  • was intended to be lived in as the matrimonial home, even if the relationship broke down before they could move in.

Other property owned by either party will not count as a matrimonial home unless it meets these conditions.

Other rights of occupation

In addition to the home rights of occupation that arise automatically from matrimonial/family law, a non-owning spouse or civil partner may also be able to show that s/he has other rights to remain arising from one of the following situations.

A non-owning spouse or civil partner may be able to show that s/he has:[11]

In most cases, however, it will be difficult to establish any of these rights beyond doubt without obtaining a declaration from the court.

Most married couples or civil partners will not need to make use of these rights, because the non-owning spouse or civil partner has home rights, and the court has the power to make a property adjustment order if the couple are divorcing. Where they may be of use is where a couple are not divorcing or dissolving the civil partnership or where a non-owning spouse or civil partner has a financial interest (known as a beneficial interest) in the property, for example if s/he has contributed to the mortgage payments or the deposit when the property was purchased. If s/he can establish a beneficial interest, this would entitle her/him to a share of the proceeds when the property was sold.

For detailed information about establishing any of these rights, see the page on Rights to occupy the home in the section on cohabiting couples: sole owner.

[1] s.31(2)(a) Family Law Act 1996.

[2] s.30(2)(a) Family Law Act 1996 as amended by Civil Partnership Act 2004.

[3] s.30(2)(a) Family Law Act 1996.

[4] s.31 Family Law Act 1996.

[5] s.33(3) Family Law Act 1996.

[6] s.40(1)(a) Family Law Act 1996.

[7] s.55 Family Law Act 1996.

[8] s.56 Family Law Act 1996.

[9] s.33(5) Family Law Act 1996.

[10] s.30(7) Family Law Act 1996.

[11] see, for example, (1) Davies (2) Davies v Davies [2014] EWCA Civ 568.

Back to top