Guidance

Practice guide 20: home rights and applications under the Family Law Act 1996

Updated 11 July 2022

Applies to England and Wales

Please note that HM Land Registry’s practice guides are aimed primarily at solicitors and other conveyancers. They often deal with complex matters and use legal terms.

1. Introduction

The main purpose of the Family Law Act 1996 as amended by the Civil Partnership Act 2004 (which itself was amended by the Civil Partnership (Opposite-sex Couples) Regulations 2019) 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 (rule 82 of the Land Registration Rules 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 Family Law Act 1996 as amended by the Civil Partnership Act 2004 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 (sections 31(4), (5) and (13) of the Family Law Act 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.

1.1 Retention of documents lodged with applications

Original documents are normally only required if your application is a first registration. A conveyancer may, however, make an application for first registration on the basis of certified copy deeds and documents only. For information about this, see practice guide 1: first registrations - Applications lodged by conveyancers – acceptance of certified copy deeds.

If your application is not a first registration we will only need certified copies of deeds or documents you send to us with HM Land Registry applications. Once we have made a scanned copy of the documents you send to us, they will be destroyed. This applies to both originals and certified copies.

However any original copies of death certificates or grants of probates will continue to be returned.

2. Whether the estate or interest in the home is registered or unregistered

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 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 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 HM Land Registry office using form SIM. See practice guide 10: index map - official search for further details.

If you do not require indemnity provisions in respect of an index map search you could consider using MapSearch. This service is available free of charge for Business e-services customers who have portal access and provides immediate search results.

When a search of the index map is made in connection with an application under the Family Law Act 1996 as amended by the Civil Partnership Act 2004, 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 2 of the application being received and will reveal any registered estate(s) or interest(s) in the home.

3. Application forms

The following application forms are prescribed by the Land Registration Rules 2003.

• Form HR1. Application for registration of a notice of home rights (rule 82 of the Land Registration Rules 2003). See Application for notice and section Rights continued by order of court
• Form HR2. Application for renewal of registration in respect of home rights (rule 82 of the Land Registration Rules 2003). See Renewal of protection
• Form HR3. Application by mortgagee for official search in respect of home rights (rule 158 of the Land Registration Rules 2003). See Official search by mortgagee
• Form HR4. Application to cancel a home rights notice. See Application to cancel a notice

4. 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 sections 31(2) or 31(5) of the Family Law Act 1996, application should be made using form HR1 to protect the charge by the entry of an agreed notice in the registered title.

A conveyancer can certify, in panel 10 of form HR1, they hold an office copy of any court order made under section 33(5) of the Family Law Act 1996.

There is no fee.

Note: Section 77 of the Land Registration Act 2002 establishes a right of action for breach of statutory duty against anyone who applies for a notice without reasonable cause. The right is in favour of any person who suffers damage as a consequence.

5. Rights continued by order of court

A spouse’s or civil partner’s rights of occupation under the Family Law Act 1996 as amended by the Civil Partnership Act 2004 will normally continue only during the subsistence of the marriage or civil partnership (see Cessation of rights). However, section 33(5) of the Family Law Act 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 Family Law Act 1996 as amended by the Civil Partnership Act 2004. (If the rights are already protected in the register, see 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.

There is no fee.

6. Renewal of protection

If the court makes an order under section 33(5) of the Family Law Act 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. A conveyancer’s certificate in panel 8 of form HR2 is sufficient to comply with our requirements. 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 to the Family Law Act 1996).

There is no fee.

7. 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 (section 31(8)(a) of the Family Law Act 1996), but see Rights continued by order of court and Renewal of protection as to the power of the court to make an order under section 33(5) of the Family Law Act 1996
• by the ending of the marriage or civil partnership otherwise than by death (section 31(8)(b) of the Family Law Act 1996), but see Rights continued by order of court and Renewal of protection as to the power of the court to make an order under section 33(5) of the Family Law Act 1996
• by an order of the court (paragraph 4(1), Schedule 4 to the Family Law Act 1996)
• by the spouse or civil partner voluntarily releasing the rights in writing (paragraph 5(1), Schedule 4 to the Family Law Act 1996)

8. Application to cancel a notice

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

• a death certificate
• an office copy of the final order or nullity of marriage order (called decree absolute of divorce or nullity before 6 April 2022)
• an office copy of a court order ending the home rights
• an office copy of the final order 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 section 33(5) of the Family Law Act 1996 that is referred to in the register (see Rights continued by order of court and 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 to the Family Law Act 1996).

There is no fee.

9. 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 Cessation of rights. If the court has made an order under section 33(5) of the Family Law Act 1996 that is referred to in the register (see Rights continued by order of court and 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 to the Family Law Act 1996)
• by a withdrawal of the caution under rule 222 of the Land Registration Rules 2003, using form WCT, signed by the spouse or the spouse’s conveyancer
• by a cancellation of the caution under rule 223 of the Land Registration Rules 2003 by the other spouse, using form CCD

There is no fee.

10. Service of notice on registered owner

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

11. 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 to the Family Law Act 1996). A conveyancer must, therefore, ascertain whether their client already has any protection under the Family Law Act 1996 and the position must then be disclosed in form HR1.

12. Official search by mortgagee

Under section 56 of the Family Law Act 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 HM Land Registry office. For the purposes of section 56(5) of the Family Law Act 1996, the search will carry priority for a period of 15 business days.

See HM Land Registry: Registration Services fees 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 Unregistered land.

13. 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 section 337 of the Insolvency Act 1986. This applies whether or not the bankrupt’s spouse or civil partner has any rights of occupation under the Family Law Act 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 section 337 of the Insolvency Act 1986
• the bankrupt’s interest in the property is now vested in the trustee in bankruptcy (who should be named)

14. Address of HM Land Registry office to which an application is to be sent

To find out where to send your completed application, see HM Land Registry address for applications.

15. Unregistered land

All applications under the Family Law Act 1996 in respect of unregistered land should be sent to:

Land Charges Department
PO Box 292
Plymouth
PL5 9BY
(DX8249 Plymouth 3)

Telephone: 0300 006 6616

16. Things to remember

HM 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.

Always check that:

• the estate or interest in the home is registered
• you used the correct form for your transaction
  • form HR1 : registration of a notice of home rights
  • form HR2 : renewal of registration in respect of home rights
  • form HR3 : official search by mortgagee in respect of home rights
  • form HR4 : cancellation of a home rights notice
  • form WCT : withdrawal of a caution
  • form CCD : cancellation of a caution
• rights of occupation have already been protected in respect of another home
• where applicable, you have either enclosed the appropriate court order or completed the appropriate conveyancer’s certificate referred to in forms HR1 and HR2
• where applicable, the correct fees have been paid.

We only provide factual information and impartial advice about our procedures. Read more about the advice we give.