Matrimonial Homes Act 1983

2 Effect of rights of occupation as charge on dwelling house

(1) Where, at any time during the subsistence of a marriage, one spouse is entitled to occupy a dwelling house by virtue of a beneficial estate or interest, then the other spouse's rights of occupation shall be a charge on that estate or interest, having the like priority as if it were an equitable interest created at whichever is the latest of the following dates, that is to say—

(a) the date when the spouse so entitled acquires the estate or interest,

(b) the date of the marriage, and

(c) the 1st January 1968 (which is the date of commencement of the Act of 1967).

(2) If, at any time when a spouse's rights of occupation are a charge on an interest of the other spouse under a trust, there are, apart from either of the spouses, no persons, living or unborn, who are or could become beneficiaries under the trust, then those rights shall be a charge also on the estate or interest of the trustees for the other spouse, having the like priority as if it were an equitable interest created (under powers overriding the trusts) on the date when it arises.

(3) In determining for purposes of subsection (2) above whether there are any persons who are not, but could become, beneficiaries under the trust, there shall be disregarded any potential exercise of a general power of appointment exercisable by either or both of the spouses alone (whether or not the exercise of it requires the consent of another person).

(4) Notwithstanding that a spouse's rights of occupation are a charge on an estate or interest in the dwelling house, those rights shall be brought to an end by—

(a) the death of the other spouse, or

(b) the termination (otherwise than by death) of the marriage,

unless in the event of a matrimonial dispute or estrangement the court sees fit to direct otherwise by an order made under section 1 above during the subsistence of the marriage.

(5) Where a spouse's rights of occupation are a charge on the estate or interest of the other spouse or of trustees for the other spouse—

(a) any order under section 1 above against the other spouse shall, except in so far as the contrary intention appears, have the like effect against persons deriving title under the other spouse or under the trustees and affected by the charge, and

(b) subsections (2) to (8) of section 1 above shall apply in relation to any person deriving title under the other spouse or under the trustees and affected by the charge as they apply in relation to the other spouse.

(6) Where—

(a) a spouse's rights of occupation are a charge on an estate or interest in the dwelling house, and

(b) that estate or interest is surrendered so as to merge in some other estate or interest expectant thereon in such circumstances that, but for the merger, the person taking the estate or interest surrendered would be bound by the charge,

the surrender shall have effect subject to the charge and the persons thereafter entitled to the other estate or interest shall, for so long as the estate or interest surrendered would have endured if not so surrendered, be treated for all purposes of this Act as deriving title to the other estate or interest under the other spouse or, as the case may be, under the trustees for the other spouse, by virtue of the surrender.

(7) Where a spouse's rights of occupation are a charge on the estate or interest of the other spouse or of trustees for the other spouse, and the other spouse—

(a) is adjudged bankrupt or makes a conveyance or assignment of his or her property (including that estate or interest) to trustees for the benefit of his or her creditors generally, or

(b) dies and his or her estate is insolvent,

then, notwithstanding that it is registered under section 2 of the [1972 c. 61.] Land Charges Act 1972 or subsection (8) below, the charge shall be void against the trustee in bankruptcy, the trustees under the conveyance or assignment or the personal representatives of the deceased spouse, as the case may be.

(8) Where the title to the legal estate by virtue of which a spouse is entitled to occupy a dwelling house (including any legal estate held by trustees for that spouse) is registered under the [1925 c. 21.] Land Registration Act 1925 or any enactment replaced by that Act

(a) registration of a land charge affecting the dwelling house by virtue of this Act shall be effected by registering a notice under that Act, and

(b) a spouse's rights of occupation shall not be an overriding interest within the meaning of that Act affecting the dwelling house notwithstanding that the spouse is in actual occupation of the dwelling house.

(9) A spouse's rights of occupation (whether or not constituting a charge) shall not entitle that spouse to lodge a caution under section 54 of the Land Registration Act 1925.

(10) Where—

(a) a spouse's rights of occupation are a charge on the estate of the other spouse or of trustees for the other spouse, and

(b) that estate is the subject of a mortgage within the meaning of the [1925 c. 20.] Law of Property Act 1925,

then, if, after the date of creation of the mortgage, the charge is registered under section 2 of the Land Charges Act 1972, the charge shall, for the purposes of section 94 of that Act of 1925 (which regulates the rights of mortgagees to make further advances ranking in priority to subsequent mortgages), be deemed to be a mortgage subsequent in date to the first-mentioned mortgage.

(11) It is hereby declared that a charge under subsection (1) or (2) above is not registrable under section 2 of the [1972 c. 61.] Land Charges Act 1972 or subsection (8) above unless it is a charge on a legal estate.