The Family Homes and Domestic Violence (Northern Ireland) Order 1998

Effect of matrimonial home rights as charge on dwelling-house

5.—(1) Paragraphs (2) and (3) apply if, at any time during a marriage, one spouse is entitled to occupy a dwelling-house by virtue of a beneficial estate.

(2) The other spouse’s matrimonial 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 the spouse so entitled acquires the estate,

(b)the date of the marriage, 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 a spouse’s matrimonial home rights 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.

(5) The rights are a charge also on the estate of the trustees for the other spouse.

(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 the spouses alone (whether or not the exercise of it requires the consent of another person).

(7) Even though a spouse’s matrimonial home rights are a charge on an estate in the dwelling-house, those rights are brought to an end by—

(a)the death of the other spouse, or

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

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

(8) If—

(a)a spouse’s matrimonial 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 the other spouse or, as the case may be, under the trustees for the other spouse, by virtue of the surrender.