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Occupation rights for sole owners and spouses or civil partners

This content applies to England & Wales

Rights to occupy the home of people who are married or in a civil partnership and the property is in one name.

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 they are the legal owner of the property. The spouse or civil partner who doesn't own the home has the right to occupy because they have '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) and as long as the owning spouse or civil partner has a legal right to occupy the home.[1]

In some situations, the spouse or civil partner who doesn't own the home may be able to establish that they also have rights arising from property law that may give them 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 spouse or civil partner who doesn't own the home occupies the matrimonial home as if they were the owner, without having the actual status of an owner.

The 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 they 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 spouse or civil partner who doesn't own the home may also be able to show that they have other rights to remain arising from one of the following situations.

The spouse or civil partner may be able to show that they have:[11]

  • a beneficial interest
  • a contractual or irrevocable licence
  • rights by estoppel.

See the page Beneficial interest and occupation rights for more information.

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 spouse or civil partner who doesn't own the home 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 the spouse or civil partner has a financial interest (known as a beneficial interest) in the property, for example if they have contributed to the mortgage payments or the deposit when the property was purchased. If they can establish a beneficial interest, this would entitle them to a share of the proceeds when the property was sold.

[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.30(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.

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