Under Part IV of the Family Law, 1996, a spouse who does not own the legal estate is given a statutory right of occupation. This is applicable irrespective whether the spouse has acquired an equitable interest in the property for example, through a small contribution to the purchase price. Only if a land is registered, either as a class F land charge in respect of unregistered land or under a notice under the Family law Act, 1996 is respect of a registered land, a statutory right becomes binding on the purchaser for the value of the legal estate. Therefore, it is the sole duty of the married seller’s advocate to check that no registration has taken place regarding the said property. Sch 4,para.4 of the Family Law Act, 1996 states that a condition in the sale contract that any Registered Family law Act rights will be removed before completion. Thus, with regard to unregistered land, the seller’s advocate should carry out a through land charges search against the name of the legal owner, or with registered land, examine the latest office copy entries. Even if the Family Law Act is not being taken care of by the non-owning spouse, there is no guarantee that he or she will not do so before the completion. The best thing that can be done in such a case is to obtain a written release from the non-owning spouse regarding all rights towards the concerned property together with an agreement to vacate. Until and unless this is done, the seller is always at a risk of breach of contract. Information should always be given to the non-owning spouse stating that his or her rights may be affected by giving such consent and that he or she should also consult an advocate before signing the release document.
