The Family Homes and Domestic Violence (Northern Ireland) Order 1998 (N.I. 6)

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Northern Ireland Orders in Council

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Registration, etc. of matrimonial charge
6. - (1) Where a matrimonial charge is a charge on a legal estate, the charge may be registered -

(2) In paragraph (1) "estate" means -

(3) A matrimonial charge shall be void as against a purchaser of an estate affected by the charge, unless the charge is registered before the purchaser -

    (4) Section 11(1) of the Land Registration Act (Northern Ireland) 1970 (registration to be conclusive evidence of title) shall not apply to a matrimonial charge registered in pursuance of paragraph (1)(a).

    (5) Where a matrimonial 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 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) The Department of the Environment may make regulations prescribing -

Restriction on registration where spouse entitled to more than one matrimonial charge
     7. - (1) Where one spouse is entitled by virtue of Article 5 to a registrable matrimonial charge in respect of each of two or more dwelling-houses, only one of the charges to which that spouse is so entitled shall be effectively registered under Article 6 at any one time.

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

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

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

Cancellation of registration of matrimonial charge before completion of disposal of dwelling-house
     8. - (1) Where a matrimonial 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 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.

Cancellation of registration after termination of marriage, etc.
     9. - (1) Subject to paragraph (2), registration of a matrimonial charge may be cancelled where -

(a) either spouse is dead,

(b) the marriage in question has been annulled or terminated otherwise than by death, or

(c) the spouse's matrimonial home rights have been terminated by an order of the court.

(2) Where -

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

(b) an order affecting the matrimonial charge of the spouse not so entitled had been made by virtue of Article 11(5),

then if, after the making of the order, registration of the matrimonial 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 entitled to the matrimonial 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 charge shall not affect the priority of that charge during the subsistence of the marriage 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.

Release of matrimonial home rights and postponement of priority of matrimonial charge
     10. - (1) A spouse entitled to matrimonial 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 matrimonial charge then, without prejudice to paragraph (1), the matrimonial 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 matrimonial 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 entitled by virtue of Article 5 to a matrimonial charge may agree in writing that any mortgage of, or other interest in, that estate shall rank in priority to the matrimonial charge.

Occupation orders
Occupation orders where applicant has estate, etc. or has matrimonial home rights
11. - (1) If -

(b) the dwelling-house -

the person entitled may apply to the court for an order containing any of the provisions specified in paragraphs (3), (4) and (5).

(2) If an agreement to marry is terminated, no application under this Article may be made by virtue of Article 3(3)(e) by reference to that agreement after the end of the period of three years beginning with the day on which it is terminated.

(3) An order under this Article may -

(4) An order under this Article may declare that the applicant is entitled as mentioned in paragraph (1)(a)(i) or has matrimonial home rights.

(5) If the applicant has matrimonial home rights and the respondent is the other spouse, an order under this Article made during the marriage may provide that those rights are not brought to an end by -

(6) In deciding whether to exercise its powers under paragraph (3) and (if so) in what manner, the court shall have regard to all the circumstances including -

(7) If it appears to the court that the applicant or any relevant child is likely to suffer significant harm attributable to conduct of the respondent if an order under this Article containing one or more of the provisions mentioned in paragraph (3) is not made, the court shall make the order unless it appears to it that -

(8) The court may exercise its powers under paragraph (5) in any case where it considers that in all the circumstances it is just and reasonable to do so.

(9) An order under this Article -

(10) An order under this Article may, in so far as it has continuing effect, be made for a specified period, until the occurrence of a specified event or until further order.

Effect of order under Article 11 where rights are a charge on dwelling-house
12. - (1) If a spouse's matrimonial home rights are a charge on the estate of the other spouse or of trustees for the other spouse -

(a) any order under Article 11 against the other spouse has, except so far as a contrary intention appears, the same effect against persons deriving title under the other spouse or under the trustees and affected by the charge, and

(b) Articles 11(1), (3), (4) and (10) and 4(3) to (6) 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.

(2) The court may make an order under Article 11 by virtue of paragraph (1)(b) if it considers that in all the circumstances it is just and reasonable to do so.

One former spouse with no existing right to occupy
13. - (1) This Article applies if -

(a) one former spouse is entitled to occupy a dwelling-house by virtue of a beneficial estate or a contract or by virtue of any statutory provision giving him the right to remain in occupation;

(b) the other former spouse is not so entitled; and

(c) the dwelling-house was at any time their matrimonial home or was at any time intended by them to be their matrimonial home.

(2) The former spouse not so entitled may apply to the court for an order under this Article against the other former spouse ("the respondent").

(3) If the applicant is in occupation, an order under this Article must contain provision -

(a) giving the applicant the right not to be evicted or excluded from the dwelling-house or any part of it by the respondent for the period specified in the order; and

(b) prohibiting the respondent from evicting or excluding the applicant during that period.

(4) If the applicant is not in occupation, an order under this Article must contain provision -

(a) giving the applicant the right to enter and occupy the dwelling-house for the period specified in the order; and

(b) requiring the respondent to permit the exercise of that right.

(5) An order under this Article may also -

(a) require the respondent to permit the applicant to have peaceful use and enjoyment of the dwelling-house or part of the dwelling-house;

(b) regulate the occupation of the dwelling-house by either or both of the parties;

(c) prohibit, suspend or restrict the exercise by the respondent of his right to occupy the dwelling-house;

(d) require the respondent to leave the dwelling-house or part of the dwelling-house;

(e) provide for the respondent to remove from the dwelling-house or part of the dwelling-house personal effects or any furniture or other contents of a kind specified in the order;

(f) exclude the respondent from a defined area in which the dwelling-house is included, any other defined area and any premises specified in the order; or

(g) restrain the respondent from disposing of any estate he has in the dwelling-house ("disposing" for this purpose including any dealing mentioned in paragraphs (a) to (f) of section 45(3) of the Interpretation Act (Northern Ireland) 1954).

(6) In deciding whether to make an order under this Article containing provision of the kind mentioned in paragraph (3) or (4) and (if so) in what manner, the court shall have regard to all the circumstances including -

(a) the housing needs and housing resources of each of the parties and of any relevant child;

(b) the financial resources of each of the parties;

(c) the likely effect of any order, or of any decision by the court not to exercise its powers under paragraph (3) or (4), on the health, safety or well-being of the parties and of any relevant child;

(d) the conduct of the parties in relation to each other and otherwise;

(e) the length of time that has elapsed since the parties ceased to live together;

(f) the length of time that has elapsed since the marriage was dissolved or annulled; and

(g) the existence of any pending proceedings between the parties -

(7) In deciding whether to exercise its powers to include one or more of the provisions referred to in paragraph (5) (a "paragraph (5) provision") and (if so) in what manner, the court shall have regard to all the circumstances including the matters mentioned in paragraph (6)(a) to (d).

(8) If the court decides to make an order under this Article and it appears to it that, if the order does not include a paragraph (5) provision, the applicant or any relevant child is likely to suffer significant harm attributable to conduct of the respondent, the court shall include the paragraph (5) provision in the order unless it appears to the court that -

(a) the respondent or any relevant child is likely to suffer significant harm if the provision is included in the order, and

(b) the harm likely to be suffered by the respondent or child in that event is as great as or greater than the harm attributable to conduct of the respondent which is likely to be suffered by the applicant or child if the provision is not included.

(9) An order under this Article -

(a) may not be made after the death of either of the former spouses; and

(b) ceases to have effect on the death of either of them.

    (10) An order under this Article must be limited so as to have effect for a specified period not exceeding twelve months, but may be extended on one or more occasions for a further specified period not exceeding twelve months.

    (11) Without prejudice to any rights which arise by virtue of an equitable estate, a former spouse who has only such an estate is to be treated for the purpose of determining whether he is eligible to apply under this Article as not being entitled to occupy the dwelling-house by virtue of that estate.

    (12) Paragraph (11) does not prejudice any right of such a former spouse to apply for an order under Article 11.

    (13) So long as an order under this Article remains in force, paragraphs (3) to (6) of Article 4 apply in relation to the applicant -

(a) as if the applicant were the spouse entitled to occupy the dwelling-house by virtue of that Article, and

(b) as if the respondent were the other spouse.

Prepared 23 June 1998

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	Northern Ireland Orders in Council
You are here: BAILII >> Databases >> Northern Ireland Orders in Council >> The Family Homes and Domestic Violence (Northern Ireland) Order 1998 (N.I. 6) URL: http://www.bailii.org/nie/legis/num_orders/1998/19981071(b).html