Family Homes and Domestic Violence (Northern Ireland) Order 1998

Rights to occupy matrimonial [F1 or civil partnership] home N.I.

F1 2004 c.33

Rights concerning[F2 home where one spouse or civil partner] has no estate, etc. N.I.

4.—(1) This Article applies if—

(a) one spouse[F2 or civil partner ( “A”)] is entitled to occupy a dwelling-house by virtue of—

(i) a beneficial estate or a contract; or

(ii) any statutory provision giving[F2 A] the right to remain in occupation; and

(b) the other spouse[F2 or civil partner ( “B”)] is not so entitled.

(2) Subject to the provisions of this Order,[F2 B] has the following rights[F2 ( “home rights”)]

(a) if in occupation, a right not to be evicted or excluded from the dwelling-house or any part of it by[F2 A] except with the leave of the court given by an order under Article 11;

(b) if not in occupation, a right with the leave of the court so given to enter into and occupy the dwelling-house.

(3) If[F2 B] is entitled under this Article to occupy a dwelling-house or any part of a dwelling-house, any payment or tender made or other thing done by[F2 B] in or towards satisfaction of any liability of[F2 A] in respect of rent, mortgage payments or other outgoings affecting the dwelling-house is, whether or not it is made or done in pursuance of an order under Article 18, as good as if made or done by[F2 A].

(4) [F2 B's] occupation by virtue of this Article—

(a) is to be treated, for the purposes of the [1978 NI 20.] Rent (Northern Ireland) Order 1978, as occupation [F2 by A as A's] residence, and

(b) if[F2 B occupies the dwelling-house as B's] only or principal home, is to be treated, for the purposes of Chapter II of Part II of the [1983 NI 15.] Housing (Northern Ireland) Order 1983, as occupation [F2 by A as A's] only or principal home.

(5) If[F2 B]

(a) is entitled under this Article to occupy a dwelling-house or any part of a dwelling-house, and

(b) makes any payment in or towards satisfaction of any liability of[F2 A] in respect of mortgage payments affecting the dwelling-house,

the person to whom the payment is made may treat it as having been made by[F2 A], but the fact that that person has treated any such payment as having been so made does not affect any claim of[F2 B] against[F2 A] to an estate in the dwelling-house by virtue of the payment.

(6) If[F2 B] is entitled under this Article to occupy a dwelling-house or part of a dwelling-house by reason of an interest of[F2 A] under a trust, the provisions of paragraphs (3) and (5) apply in relation to the trustees as they apply in relation to[F2 A].

(7) This Article does not apply to a dwelling-house[F2 which—

(a) in the case of spouses, has at no time been, and was at no time intended by them to be, a matrimonial home of theirs; and

(b) in the case of civil partners, has at no time been, and was at no time intended by them to be, a civil partnership home of theirs.]

(8) [F2 B's home rights] continue—

(a) only so long as the marriage[F2 or civil partnership] subsists, except to the extent that an order under Article 11(5) otherwise provides, and

(b) only so long as[F2 A] is entitled as mentioned in paragraph (1) to occupy the dwelling-house, except where provision is made by Article 5 for those rights to be a charge on an estate in the dwelling-house.

(9) Without prejudice to any rights which arise by virtue of an equitable estate,[F2 a person] who has only such an estate is to be treated for the purpose of determining whether he has[F2 home rights] as not being entitled to occupy the dwelling-house by virtue of that estate; and this Article shall apply accordingly where each of two spouses[F2 or civil partners] is so entitled.

F2 2004 c.33

Effect of[F3 home rights] as charge on dwelling-house N.I.

5.—(1) Paragraphs (2) and (3) apply if, at any time during a [F3 marriage or civil partnership, A] is entitled to occupy a dwelling-house by virtue of a beneficial estate.

(2) [F3 B's home rights] are a charge on that estate.

(3) The charge created by paragraph (2) has the same priority as if it were an equitable interest created at whichever is the latest of the following dates—

(a) the date on which[F3 A] acquires the estate,

(b) the date of the marriage[F3 or of the formation of the civil partnership], and

(c) 1st September 1989 (the commencement date of Part II of the [1984 NI 14.] Family Law (Miscellaneous Provisions) (Northern Ireland) Order 1984).

(4) Paragraph (5) applies if, at any time when[F3 B's home rights] are a charge on an interest of[F3 A] under a trust, there are, apart from[F3 A or B], no persons, living or unborn, who are or could become beneficiaries under the trust.

(5) The rights are a charge also on the estate of the trustees for[F3 A].

(6) In determining for the purposes of paragraph (4) whether there are any persons who are not, but could become, beneficiaries under the trust, there is to be disregarded any potential exercise of a general power of appointment exercisable by either or both of[F3 A and B] alone (whether or not the exercise of it requires the consent of another person).

(7) Even though[F3 B's home rights] are a charge on an estate in the dwelling-house, those rights are brought to an end by—

(a) the death of[F3 A], or

(b) the termination (otherwise than by death) of the marriage[F3 or civil partnership],

unless the court directs otherwise by an order made under Article 11(5).

(8) If—

(a) [F3 B's home rights] are a charge on an estate in the dwelling-house, and

(b) that estate is surrendered to merge in some other estate expectant on it in such circumstances that, but for the merger, the person taking the estate would be bound by the charge,

the surrender has effect subject to the charge and the persons thereafter entitled to the other estate are, for so long as the estate surrendered would have endured if not so surrendered, to be treated for all purposes of this Order as deriving title to the other estate under[F3 A] or, as the case may be, under the trustees for[F3 A], by virtue of the surrender.

F3 2004 c.33

Registration, etc. of matrimonial[F4 or civil partnership] charge N.I.

6.—(1) Where a matrimonial [F4 or civil partnership] charge is a charge on a legal estate, the charge may be registered—

(a) if it affects registered land, by its entry as a burden in the title register in the Land Registry, or

(b) if it affects unregistered land, in the Registry of Deeds.

(2) In paragraph (1) “estate” means—

(a) a freehold estate, or

(b) a leasehold estate for a term exceeding 21 years, not being a term for securing money.

(3) A matrimonial[F4 or civil partnership] charge shall be void as against a purchaser of an estate affected by the charge, unless the charge is registered before the purchaser—

(a) enters into a contract to purchase that estate; or

(b) takes as security for the payment of a sum of money—

(i) the deposit of documents of title in pursuance of section 50 of the Land Registration Act (Northern Ireland) 1970, or

(ii) in the case of unregistered land, the deposit of title deeds, in relation to that estate.

(4) Section 11(1) of the [1970 c. 18 (N.I.).] Land Registration Act (Northern Ireland) 1970 (registration to be conclusive evidence of title) shall not apply to a matrimonial [F4 or civil partnership] charge registered in pursuance of paragraph (1)(a).

(5) Where a matrimonial[F4 or civil partnership] charge affects registered land, its registration in the Land Registry and the cancellation, variation, release or renewal of, or the postponement of the priority of, such registration shall be effected in accordance with Land Registry Rules made under section 85(3) of the Land Registration Act (Northern Ireland) 1970.

(6) Where a matrimonial[F4 or civil partnership] charge affects unregistered land, its registration in the Registry of Deeds and the cancellation, variation, release or renewal of, or the postponement of the priority of, such registration shall be effected by lodging in that registry such documents as may be prescribed by regulations made under paragraph (7).

(7 )F5  The Department of the Environment may make regulations prescribing—

(a) the documents to be lodged in the Registry of Deeds for or in connection with the matters mentioned in paragraph (6);

(b) the form and content of such documents and the number of copies to be furnished to the registrar; and

(c) the manner in which such documents are to be registered.

F4 2004 c.33

F5 functions transf. by SR 1999/481

Restriction on registration where spouse entitled to more than one matrimonial[F6 or civil partnership] charge N.I.

7.—(1) Where one spouse [F6 or civil partner] is entitled by virtue of Article 5 to a registrable matrimonial[F6 or civil partnership] charge in respect of each of two or more dwelling-houses, only one of the charges to which that spouse[F6 or civil partner] is so entitled shall be effectively registered under Article 6 at any one time.

(2) The registration of a matrimonial[F6 or civil partnership] charge, in respect of any dwelling-house, in favour of one spouse[F6 or civil partner] shall cease to have effect upon the registration of a matrimonial[F6 or civil partnership] charge, in respect of any other dwelling-house, in favour of that spouse[F6 or civil partner].

(3) A spouse[F6 or civil partner] applying for registration of a matrimonial[F6 or civil partnership] charge shall notify the registrar to whom the application is made, of any subsisting registered matrimonial[F6 or civil partnership] charge in respect of[F6 home rights] to which that spouse[F6 or civil partner] is entitled.

(4 )F7  The Department of the Environment may make regulations prescribing the circumstances and manner in which the registration of a matrimonial[F6 or civil partnership] charge which has ceased to have effect by virtue of paragraph (2) shall be cancelled.

F6 2004 c.33

F7 functions transf. by SR 1999/481

Cancellation of registration of matrimonial[F8 or civil partnership] charge before completion of disposal of dwelling-house N.I.

8.—(1) Where a matrimonial [F8 or civil partnership] charge is registered in relation to an estate in a dwelling-house, it shall be a term of any contract for the disposal of that estate, whereby the person disposing of the estate agrees to give vacant possession of the dwelling-house on completion of the contract, that that person will before such completion procure the cancellation of the registration of the charge at his expense.

(2) If, on completion of such a contract as is referred to in paragraph (1), there is delivered to the person acquiring the estate or his solicitor such documents and fees as are required to effect cancellation of the registration of the matrimonial[F8 or civil partnership] charge, the term of the contract, for which paragraph (1) provides, shall be deemed to have been performed.

(3) Paragraph (1) shall not apply to any such contract made by a person who is entitled to dispose of the estate in the dwelling-house freed from any such charge.

(4) This Article applies only if and so far as a contrary intention is not expressed in the contract.

F8 2004 c.33

Cancellation of registration after termination of marriage[F9 or civil partnership], etc. N.I.

9.—(1) Subject to paragraph (2), registration of a [F9 matrimonial or civil partnership charge] may be cancelled where—

(a) either spouse[F9 or civil partner] is dead,

(b) the marriage[F9 or civil partnership] in question has been annulled or terminated otherwise than by death, or

(c) the[F9 spouse's or civil partner's home rights] have been terminated by an order of the court.

(2) Where—

(a) the marriage[F9 or civil partnership] in question has been terminated by the death of the spouse[F9 or civil partner] entitled to an estate in the dwelling-house or otherwise than by death, and

(b) an order affecting the matrimonial[F9 or civil partnership] charge of the spouse[F9 or civil partner] not so entitled had been made by virtue of Article 11(5),

then if, after the making of the order, registration of the matrimonial[F9 or civil partnership] charge was renewed or the charge registered in pursuance of paragraph (3), the registration shall not be cancelled in accordance with paragraph (1) unless the order has ceased to have effect.

(3) Where such an order has been made, then, for the purposes of paragraph (2), the spouse[F9 or civil partner] entitled to the matrimonial[F9 or civil partnership] charge affected by the order may—

(a) if before the date of the order the charge was registered, renew the registration, and

(b) if before the said date the charge was not so registered, register the charge.

(4) The renewal in pursuance of paragraph (3) of the registration of a matrimonial[F9 or civil partnership] charge shall not affect the priority of that charge during the subsistence of the marriage[F9 or civil partnership] in question; but failure to renew such registration shall render the charge void against a purchaser in so far as it extends beyond the termination, by death or otherwise, of the marriage[F9 or civil partnership].

F9 2004 c.33

Release of matrimonial[F10 or civil partnership] home rights and postponement of priority of matrimonial[F10 or civil partnership] charge N.I.

10.—(1) A [F10 spouse or civil partner entitled to home rights] may by a release in writing release those rights or release them as respects part only of the dwelling-house affected by them.

(2) Where a contract is made for the disposal of the estate in a dwelling-house affected by a registered[F10 matrimonial or civil partnership charge] then, without prejudice to paragraph (1), the[F10 home rights] constituting the charge shall be deemed to have been released on the happening of whichever of the following events first occurs—

(a) the delivery to the purchaser of such documents as are required to effect cancellation of the registration of the[F10 matrimonial or civil partnership charge]; or

(b) the lodging of such documents in the Land Registry or the Registry of Deeds, as the case may require.

(3) A spouse[F10 or civil partner] entitled by virtue of Article 5 to a[F10 matrimonial or civil partnership charge] may agree in writing that any mortgage of, or other interest in, that estate shall rank in priority to the[F10 matrimonial or civil partnership charge].

F10 2004 c.33