Family Home

The Family Home and Domestic Violence (NI) Order 1998 makes provisions for the non-owning spouse and issues arising from domestic violence. The legislation was extended to apply to civil partners in 2004. Accordingly, the references below to spouses will also refer to civil partners in almost all cases.

If a spouse is entitled to occupy a dwelling house by reason of a beneficial interest, contract, or a statutory right to remain in occupation, and the other spouse is not so entitled, the following provisions apply. The non-owning spouse has the following home rights. If in occupation, he or she has the right not to be evicted or excluded from the dwelling-house or any part of it, except with the leave of the court given below. If not in occupation, he or she has the right, with the leave of the court, to enter into and occupy the dwelling-house.

If the non-owning spouse is entitled to occupy the dwelling-house or any part of it, any payment or tender made or other thing done by the non-owning spouse in or towards satisfaction of the liability of the owning spouse in respect of rent, mortgage payments, or outgoings affecting the dwelling-house is, whether or not made or done pursuant to an order, as good as if made or done by the owning spouse.

The non-owning spouse’s occupation is to be treated as occupation by the tenant for the purposes of rent legislation and local authority tenancy. If the non-owning spouse is entitled to occupy the dwelling-house or any part of it and makes a payment towards satisfaction of any mortgage liability affecting the dwelling-house, the person to whom the payment is made may treat it as having been made by the owning spouse. This does not affect the claim of the non-owning spouse against the owning spouse for any estate or right in the dwelling-house by virtue of the contribution.

If the non-owning spouse is entitled to occupy a dwelling-house or part of the dwelling-house by reason of the owning spouse’s interest under a trust, the provisions above apply in relation to the trustees as they apply in relation to the owning spouse.

The above provisions do not apply to a dwelling-house which, in the case of spouses, has at no time been and must at no time be intended to be occupied by them as a matrimonial home (or a civil partnership shared home).

The non-owning spouse’s rights continue as long as the marriage (or civil partnership) subsists, except to the extent that it is otherwise ordered. And only as long as the owning spouse is entitled to occupy the dwelling-house, except where provision is made for those rights to be a charge on the dwelling-house.

Where a prejudice to rights exists by reason of an equitable interest or estate, a person who has only such an estate is to be treated for the purpose of determining whether he has home rights as not being entitled to occupy the house by virtue of that estate, and the provisions apply where each of two spouses is so entitled.

The following provisions apply if, during a marriage or civil partnership, the owning spouse is entitled to occupy a dwelling-house by reason of a beneficial interest. The non-owning spouses are a charge on that estate. The charge has the same priority as if it were an equitable interest created at the latest of the date on which the owning spouse acquires the interest, the date of the marriage or civil partnership, or the commencement of the legislation.

The rights are a charge on the estate of the trustees or the owning spouse if, at any time, the non-owning spouse’s home rights are a charge on the interest under the trust, and there are, apart from the spouse and non-owning spouse, no persons, living or unborn, who are or could become beneficiaries under the trust.

In determining, for the above purposes, whether there are persons who are not but could become beneficiaries under a trust, there are to be disregarded potential exercises of general powers of appointment exercised by either or both of the owning and non-owning spouse alone, whether or not with the consent of another person.

Even though the non-owning spouse’s rights are a charge on the estate in the house, those rights are terminated by the owning spouse’s death or the termination of the marriage or civil partnership, unless the court otherwise directs.

If a non-owning spouse’s rights are a charge on the estate in the dwelling-house, and it is surrendered to merge in some other estate, the surrender has effect subject to the charge. The persons entitled to the other estate are, for as long as the estate surrendered would have endured if not so surrendered, to be treated as deriving title from the other estate under the owning spouse or as trustees.

Where a matrimonial charge is a charge on the legal estate, it may be registered in the Land Registry or Registry of Deeds depending on the type of title. This applies to freehold estates and leasehold estates for terms exceeding 21 years, not being for terms to secure money. A matrimonial charge is void as against the purchaser of the estate affected by the charge, unless the charge is registered before the contract is entered or security is taken.

Where a spouse is entitled to a registrable matrimonial charge in respect of two or more dwelling-houses, only one of those charges shall be registrable at any one time. The registration of a matrimonial charge, in respect of a dwelling-house, in favor of one spouse shall cease upon the registration of a charge, in respect of another house, in favor of that spouse. A spouse applying for registration of a matrimonial charge must notify the registrar to whom the application is made of any subsisting registered charge in respect of which that spouse is entitled.

Where a matrimonial charge is registered on the estate in a dwelling-house, it is a term of any contract for its disposal, whereby the person disposing is to give vacant possession, that the person shall, on or before completion, procure the cancellation of the charge.

If, on completion of such a contract, there is delivered to the purchaser such documents and fees as are required for cancellation of the charge, the obligation is deemed performed. This provision takes effect subject to any provision to the contrary in the contract.

A matrimonial charge may be canceled where either spouse is dead, the marriage is annulled, or the spouse’s rights have been terminated by court order. A spouse or civil partner may release in writing rights as a part only of the dwelling-house affected by them.

Where a contract is made for the disposal of an estate in a dwelling-house affected by a registered charge, then the rights constituting the charge shall be deemed to have been released on the happening of the first of the following events: Delivery to the purchaser of such documents as are required to cancel the charge or the lodging of such documents in the Land Registry or Registry of Deeds.

A spouse or civil partner entitled to matrimonial or civil partnership charges may agree in writing that any mortgage or other interests in the house shall rank in priority to the matrimonial charge.