It doesn’t matter that he’s not on the tenancy. It’s totally irrelevant.
30 Rights concerning [F2home where one spouse or civil partner] has no estate, etc.
(1)This section applies if—
(a)one spouse [F3 or civil partner (“A”)] is entitled to occupy a dwelling-house by virtue of—
(i)a beneficial estate or interest or contract; or
(ii)any enactment giving [F4A] the right to remain in occupation; and
(b)the other spouse [F5 or civil partner (“B”)] is not so entitled.
(2)Subject to the provisions of this Part, [F6B] has the following rights ([F7“home rights”])—
(a)if in occupation, a right not to be evicted or excluded from the dwelling-house or any part of it by [F8A] except with the leave of the court given by an order under section 33;
(b)if not in occupation, a right with the leave of the court so given to enter into and occupy the dwelling-house.
(3)If [F9B] is entitled under this section to occupy a dwelling-house or any part of a dwelling-house, any payment or tender made or other thing done by [F9B] in or towards satisfaction of any liability of [F10A] in respect of rent, mortgage payments or other outgoings affecting the dwelling-house is, whether or not it is made or done in pursuance of an order under section 40, as good as if made or done by [F10A].
(4)[F11B's] occupation by virtue of this section—
(a)is to be treated, for the purposes of the M1Rent (Agriculture) Act 1976 and the M2Rent Act 1977 (other than Part V and sections 103 to 106 of that Act), as occupation [F12by A as A's] residence, and
(b)if [F13B occupies the dwelling-house as B's] only or principal home, is to be treated, for the purposes of the M3Housing Act 1985 [F14, Part I of the Housing Act 1988 [F15, Chapter 1 of Part 5 of the Housing Act 1996 and the Prevention of Social Housing Fraud Act 2013]], as occupation [F16by A as A's] only or principal home.
(5)If [F17B])—
(a)is entitled under this section to occupy a dwelling-house or any part of a dwelling-house, and
(b)makes any payment in or towards satisfaction of any liability of [F18A] in respect of mortgage payments affecting the dwelling-house,
the person to whom the payment is made may treat it as having been made by [F19A], but the fact that that person has treated any such payment as having been so made does not affect any claim of [F20B against A] to an interest in the dwelling-house by virtue of the payment.
(6)If [F21B] is entitled under this section to occupy a dwelling-house or part of a dwelling-house by reason of an interest of [F22A] under a trust, all the provisions of subsections (3) to (5) apply in relation to the trustees as they apply in relation to [F22A].
(7)This section does not apply to a dwelling-house [F23 which—
(a)in the case of spouses, has at no time been, and was at no time intended by them to be, a matrimonial home of theirs; and
(b)in the case of civil partners, has at no time been, and was at no time intended by them to be, a civil partnership home of theirs.]
(8)[F24B’s home rights] continue—
(a)only so long as the marriage [F25or civil partnership] subsists, except to the extent that an order under section 33(5) otherwise provides; and
(b)only so long as [F26A] is entitled as mentioned in subsection (1) to occupy the dwelling-house, except where provision is made by section 31 for those rights to be a charge on an estate or interest in the dwelling-house.
(9)It is hereby declared that [F27a person]—
(a)who has an equitable interest in a dwelling-house or in its proceeds of sale, but
(b)is not [F27a person] in whom there is vested (whether solely or as joint tenant) a legal estate in fee simple or a legal term of years absolute in the dwelling-house,
is to be treated, only for the purpose of determining whether he has [F28home rights], as not being entitled to occupy the dwelling-house by virtue of that interest.