Matrimonial Homes (Family Protection) (Scotland) Act 1981

JurisdictionUK Non-devolved
Citation1981 c. 59


Matrimonial Homes(Family Protection)(Scotland) Act 1981

1981 CHAPTER 59

An Act to make new provision for Scotland as to the rights of occupancy of spouses in a matrimonial home and of cohabiting couples in the house where they cohabit; to provide for the transfer of the tenancy of a matrimonial home between the spouses in certain circumstances during marriage and on granting decree of divorce or nullity of marriage, and for the transfer of the tenancy of a house occupied by a cohabiting couple between the partners in certain circumstances; to strengthen the law relating to matrimonial interdicts; and for connected purposes.

[30th October 1981]

Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

Protection of occupancy rights of one spouse against the other

Protection of occupancy rights of one spouse against the other

S-1 Right of spouse without title to occupy matrimonial home.

1 Right of spouse without title to occupy matrimonial home.

(1) Where, apart from the provisions of this Act, one spouse is entitled, or permitted by a third party, to occupy a matrimonial home (an ‘entitled spouse’) and the other spouse is not so entitled or permitted (a ‘non-entitled spouse’), the non-entitled spouse shall, subject to the provisions of this Act, have the following rights—

(a ) if in occupation, a right not to be excluded from the matrimonial home or any part of it by the entitled spouse;

(b ) if not in occupation, a right to enter into and occupy the matrimonial home.

(2) In subsection (1) above, an ‘entitled spouse’ includes a spouse who is entitled, or permitted by a third party, to occupy a matrimonial home along with an individual who is not the other spouse only if that individual has waived his or her right of occupation in favour of the spouse so entitled or permitted.

(3) If the entitled spouse refuses to allow the non-entitled spouse to exercise the right conferred by subsection (1)(b or (4) of this Act.

(4) In this Act, the rights mentioned in paragraphs (a ) and (b ) of subsection (1) above are referred to as occupancy rights.

(5) A non-entitled spouse may renounce in writing his or her occupancy rights only—

(a ) in a particular matrimonial home; or

(b ) in a particular property which it is intended by the spouses will become a matrimonial home.

(6) A renunciation under subsection (5) above shall have effect only if at the time of making the renunciation, the non-entitled spouse has sworn or affirmed before a notary public that it was made freely and without coercion of any kind.

S-2 Subsidiary and consequential rights.

2 Subsidiary and consequential rights.

(1) For the purpose of securing the occupancy rights of a non-entitled spouse, that spouse shall, in relation to a matrimonial home, be entitled without the consent of the entitled spouse—

(a ) to make any payment due by the entitled spouse in respect of rent, rates, secured loan instalments, interest or other outgoings (not being outgoings on repairs or improvements);

(b ) to perform any other obligation incumbent on the entitled spouse (not being an obligation in respect of non-essential repairs or improvements);

(c ) to enforce performance of an obligation by a third party which that third party has undertaken to the entitled spouse to the extent that the entitled spouse may enforce such performance;

(d ) to carry out such essential repairs as the entitled spouse may carry out;

(e ) to carry out such non-essential repairs or improvements as may be authorised by an order of the court, being such repairs or improvements as the entitled spouse may carry out and which the court considers to be appropriate for the reasonable enjoyment of the occupancy rights;

(f ) to take such other steps, for the purpose of protecting the occupancy rights of the non-entitled spouse, as the entitled spouse may take to protect the occupancy rights of the entitled spouse.

(2) Any payment made under subsection (1)(a ) above or any obligation performed under subsection (1)(b ) above shall have effect in relation to the rights of a third party as if the payment were made or the obligation were performed by the entitled spouse; and the performance of an obligation which has been enforced under subsection (1)(c ) above shall have effect as if it had been enforced by the entitled spouse.

(3) Where there is an entitled and a non-entitled spouse, the court, on the application of either of them, may, having regard in particular to the respective financial circumstances of the spouses, make an order apportioning expenditure incurred or to be incurred by either spouse—

(a ) without the consent of the other spouse, on any of the items mentioned in paragraphs (a ) and (d ) of subsection (1) above;

(b ) with the consent of the other spouse, on anything relating to a matrimonial home.

(4) Where both spouses are entitled, or permitted by a third party, to occupy a matrimonial home—

(a ) either spouse shall be entitled, without the consent of the other spouse, to carry out such non-essential repairs or improvements as may be authorised by an order of the court, being such repairs or improvements as the court considers to be appropriate for the reasonable enjoyment of the occupancy rights;

(b ) the court, on the application of either spouse, may, having regard in particular to the respective financial circumstances of the spouses, make an order apportioning expenditure incurred or to be incurred by either spouse, with or without the consent of the other spouse, on anything relating to the matrimonial home.

(5) Where one spouse owns or hires, or is acquiring under a hire-purchase or conditional sale agreement, furniture and plenishings in a matrimonial home—

(a ) the other spouse may, without the consent of the first mentioned spouse—

(i)make any payment due by the first mentioned spouse which is necessary, or take any other step which the first mentioned spouse is entitled to take, to secure the possession or use of any such furniture and plenishings (and any such payment shall have effect in relation to the rights of a third party as if it were made by the first mentioned spouse); or

(ii) carry out such essential repairs to the furniture and plenishings as the first mentioned spouse is entitled to carry out;

(b ) the court, on the application of either spouse, may, having regard in particular to the respective financial circumstances of the spouses, make an order apportioning expenditure incurred or to be incurred by either spouse—

(i) without the consent of the other spouse, in making payments under a hire, hire-purchase or conditional sale agreement, or in paying interest charges in respect of the furniture and plenishings, or in carrying out essential repairs to the furniture and plenishings; or

(ii) with the consent of the other spouse, on anything relating to the furniture and plenishings.

(6) An order under subsection (3), (4)(b ) or (5)(b ) above may require one spouse to make a payment to the other spouse in implementation of the apportionment.

(7) Any application under subsection (3), (4)(b ) or (5)(b ) above shall be made within five years of the date on which any payment in respect of such incurred expenditure was made.

(8) Where—

(a ) the entitled spouse is a tenant of a matrimonial home; and

(b ) possession thereof is necessary in order to continue the tenancy; and

(c ) the entitled spouse abandons such possession,

the tenancy shall be continued by such possession by the non-entitled spouse.

(9) In this section ‘improvements’ includes alterations and enlargement.

S-3 Regulation by court of rights of occupancy of matrimonial home.

3 Regulation by court of rights of occupancy of matrimonial home.

(1) Where there is an entitled and a non-entitled spouse, or where both spouses are entitled, or permitted by a third party, to occupy a matrimonial home, either spouse may apply to the court for an order—

(a ) declaring the occupancy rights of the applicant spouse;

(b ) enforcing the occupancy rights of the applicant spouse;

(c ) restricting the occupancy rights of the non-applicant spouse;

(d ) regulating the exercise by either spouse of his or her occupancy rights;

(e ) protecting the occupancy rights of the applicant spouse in relation to the other spouse.

(2) Where one spouse owns or hires, or is acquiring under a hire-purchase or conditional sale agreement, furniture and plenishings in a matrimonial home, the other spouse, if he or she has occupancy rights in that home, may apply to the court for an order granting to the applicant the possession or use in the matrimonial home of any such furniture and plenishings; but, subject to section 2 of this Act, an order under this subsection shall not prejudice the rights of any third party in relation to the non-performance of any obligation under such hire-purchase or conditional sale agreement.

(3) The court shall grant an application under subsection (1) (a ) above if it appears to the court that the application relates to a matrimonial home; and, on an application under any of paragraphs (b ) to (e ) of subsection (1) or under subsection (2) above, the court may make such order relating to the application as appears to it to be just and reasonable having regard to all the circumstances of the case including—

(a ) the...

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