When relationships break down emotions are heightened. In many cases the split is particularly hostile and one of the pair takes matters into their own hands by changing the locks on the family home, ‘throwing out’ their spouse and forcing them to find alternative accommodation.
Often this is the case when a sudden event has taken place to force the split, such as the discovery that one partner has been having an extra-marital relationship, or a physical altercation between the parties. In cases like these, who does the law say gets to live in the matrimonial home?
Ownership & Occupancy Rights
The starting point for answering this question is establishing who legally owns the property. This can be determined by whose name is on the title deeds.
Ownership brings with it ‘occupancy rights’, which means that if you own the property (either solely or jointly with someone else) then you have the right to live there and not to be illegally evicted. So if both spouses own the property, then they both have occupancy rights.
What if I am not on the title deeds?
For married couples, the Matrimonial Homes (Family Protection)(Scotland) Act 1981 states that the person who owns the property (or is the tenant in a rental agreement) is an ‘entitled spouse’ and the partner who does not is the ‘non-entitled spouse’. There are similar provisions contained within the Civil Partnership (Scotland) Act 2004 for same-sex couples in a civil partnership.
This means that the spouse of the property owner is entitled to continue living in the property they lived in together as a family home. They can also take steps in court to restrict the occupancy rights of the entitled spouse if need be.
If parties are not married and are instead cohabiting where one party owns the property, the other cohabitant has no automatic occupancy rights. In such cases the partner without title can apply to the court for the right to live in the property for a period of up to 6 months, which can be extended on request.
Interdicts and Exclusion Orders
It is all very well and good for parties to know that they have occupancy rights to the family home, however whether or not they feel safe enough to enforce them can be dependent on the availability of other protective measures such as interdicts and exclusion orders. These are often used where there is a background of abuse in the relationship.
Interdicts can restrain or prohibit any specified conduct by one spouse/civil partner against the other or any children. Exclusion orders can be used to restrict the occupancy rights of a spouse/civil partner. A court will not grant such orders unless they are necessary for the protection of the applicant or any children. In coming to their decision, the court will consider carefully the risk or existence of harm to the physical or mental health of the applicant and any children.
Should an exclusion order be granted, there are a number of additional orders that can be sought by the applicant to allow them to enforce the exclusion order such as eviction orders, interdicts preventing the other spouse from entering the house or the surrounding area, and powers of arrest.
If you find yourself in a situation where you need to regulate your living situation following a split from a partner, it is best to seek advice as early as possible. We can assist on all issues affecting occupancy rights and protective orders. Contact us to discuss further.
