PREP TASK 1
1. Outline the relevant law and confirm advice
Matrimonial home rights
If a spouse is not a legal owner of the property, they may feel
vulnerable. In such a case, the spouse should be advised of their
matrimonial home rights with respect to the matrimonial home by
virtue of section 30, FLA 1996
These rights protect a non-owning spouse against evictions from the
matrimonial home without the leave of leave
(a) Her fear that she and the children would be left with
nowhere to live
Mrs OB’s fear stems from the fact that the home is owned solely by Mr
OB [& he is selling up on other properties/business to start a new life in
Devon]
Advised on her rights
Mr OB should be advised on her rights [matrimonial home rights]
immediately.
If a spouse is a not a legal owner of the property, they may feel
vulnerable. In such a situation, the spouse should be advised of their
matrimonial home rights with respect to the matrimonial home by
virtue of section 30 FLA 1996
S30, FLA 1996
As per the above, under section 30 FLA 1996, a spouse who is not the
legal owner of the matrimonial home has -
(a) A personal right not to be evicted/excluded from the home except with
the leave of the court
(b)Alternatively, if they are not in occupation, a right to enter into and
occupy the property
Essentially these rights protect a non-owning spouse against eviction
from the family home without leave of the court.
This right exists in respect of only one property at a time and it must
have been the family home at some stage.
Register her Family Law Rights Act
Mrs OB should be advised to register her Family Law Act rights
immediately.
The family home rights should be registered so that they bind any
subsequent buyers and lenders.
In order for the rights to be enforceable against a third party, they
must be registered as a charge against the property using Land
Registry Form HR1 [for the non-owning spouse of the property, their
rights must be registered]
, They register the matrimonial home rights as a non-owning spouse of
the property.
In order to ascertain where the registration should be made, it may be
necessary to carry out an index Map search at Land Registry. This will
indicate whether or not the property is registered.
If it is registered, then an agreed notice should be placed on the
register and if the title is unregistered then a Class F land charge
should be registered against the name of the owning spouse.
Once registration has taken place
Once registered she will be protected from eviction without leave of
the court. This will protect her rights of occupation in the short term.
Registration also ensures that a lender must notify the spouse who
doesn’t own the home of any possession proceedings.
This type of protection terminates on a final divorce order.
In due course, when she petitions for divorce, she will need to apply for
a property adjustment order.
PAGE 130 OF THE LPC BUDDY
PAGE 117 OF THE TEXTBOOK
(b) The threatened sale of the business
On the facts, he is selling the business/looking for a buyer
He runs a small successful business. Mrs Ob has helped out from time
to time.
Section 37, MCA 1973
A spouse can apply for various injunctions in relation a disposal of
property by a spouse.
Preventing disposals, section 37(2)(a)
Mrs OB could prevent the sale to the business under section 37(2)(a),
seeking an injunction which is to prevent Mr OB from disposing of
property.
[this is a restrictive injunction to stop him from selling the business]
[DO NOT CALL IT A FREEZING ORDER CALL IT A SECTION 37
INJUNCTION]
Eligibility for s7 injunction [must be satisfied for a court to make
an order]
To be able to apply for such an injunction under s37, Mrs OB must have
already made an application for financial relief under the MCA 1973
[e.g. lump sum or property adjustment order]
1. Outline the relevant law and confirm advice
Matrimonial home rights
If a spouse is not a legal owner of the property, they may feel
vulnerable. In such a case, the spouse should be advised of their
matrimonial home rights with respect to the matrimonial home by
virtue of section 30, FLA 1996
These rights protect a non-owning spouse against evictions from the
matrimonial home without the leave of leave
(a) Her fear that she and the children would be left with
nowhere to live
Mrs OB’s fear stems from the fact that the home is owned solely by Mr
OB [& he is selling up on other properties/business to start a new life in
Devon]
Advised on her rights
Mr OB should be advised on her rights [matrimonial home rights]
immediately.
If a spouse is a not a legal owner of the property, they may feel
vulnerable. In such a situation, the spouse should be advised of their
matrimonial home rights with respect to the matrimonial home by
virtue of section 30 FLA 1996
S30, FLA 1996
As per the above, under section 30 FLA 1996, a spouse who is not the
legal owner of the matrimonial home has -
(a) A personal right not to be evicted/excluded from the home except with
the leave of the court
(b)Alternatively, if they are not in occupation, a right to enter into and
occupy the property
Essentially these rights protect a non-owning spouse against eviction
from the family home without leave of the court.
This right exists in respect of only one property at a time and it must
have been the family home at some stage.
Register her Family Law Rights Act
Mrs OB should be advised to register her Family Law Act rights
immediately.
The family home rights should be registered so that they bind any
subsequent buyers and lenders.
In order for the rights to be enforceable against a third party, they
must be registered as a charge against the property using Land
Registry Form HR1 [for the non-owning spouse of the property, their
rights must be registered]
, They register the matrimonial home rights as a non-owning spouse of
the property.
In order to ascertain where the registration should be made, it may be
necessary to carry out an index Map search at Land Registry. This will
indicate whether or not the property is registered.
If it is registered, then an agreed notice should be placed on the
register and if the title is unregistered then a Class F land charge
should be registered against the name of the owning spouse.
Once registration has taken place
Once registered she will be protected from eviction without leave of
the court. This will protect her rights of occupation in the short term.
Registration also ensures that a lender must notify the spouse who
doesn’t own the home of any possession proceedings.
This type of protection terminates on a final divorce order.
In due course, when she petitions for divorce, she will need to apply for
a property adjustment order.
PAGE 130 OF THE LPC BUDDY
PAGE 117 OF THE TEXTBOOK
(b) The threatened sale of the business
On the facts, he is selling the business/looking for a buyer
He runs a small successful business. Mrs Ob has helped out from time
to time.
Section 37, MCA 1973
A spouse can apply for various injunctions in relation a disposal of
property by a spouse.
Preventing disposals, section 37(2)(a)
Mrs OB could prevent the sale to the business under section 37(2)(a),
seeking an injunction which is to prevent Mr OB from disposing of
property.
[this is a restrictive injunction to stop him from selling the business]
[DO NOT CALL IT A FREEZING ORDER CALL IT A SECTION 37
INJUNCTION]
Eligibility for s7 injunction [must be satisfied for a court to make
an order]
To be able to apply for such an injunction under s37, Mrs OB must have
already made an application for financial relief under the MCA 1973
[e.g. lump sum or property adjustment order]
