Occupancy Rights: my other half owns our home – can they really make me leave?

In the majority of cases, the most important asset that couples will acquire together is a property. The property in which a couple live is often referred to as the family or matrimonial home. Usually, the matrimonial home is owned by the couple or by one of them. Where the home is owned by only one of the parties, difficulties in relation to occupation of the property can sometimes arise when the relationship breaks down.

In Scotland, when a person purchases a property they are the owner of that property. This is known as having ‘title’ to that property and grants automatic occupancy rights. In most cases, but not all, homes are jointly owned by a couple, whether these be married couples, couples in a civil partnership or cohabiting couples. In these cases, both will have title to the property and occupancy rights.

So what happens in those cases where the family home is not jointly owned and owned only by one spouse, civil partner or partner? It is at this stage it is relevant to distinguish between married or civilly registered couples and cohabiting couples.

The spouse or civil partner who owns the matrimonial home is known as the “entitled spouse/civil partner”, and the spouse or civil partner who does not own the property is known as the “non-entitled spouse/civil partner”. These terms are found in the Matrimonial Homes (Family Protection) (Scotland) Act 1981 and the Civil Partnership Act 2004, which is the legislation that regulates the occupancy rights of spouses, civil partners and cohabiting couples. The “entitled spouse/civil partner” has automatic occupancy rights by virtue of their title.

It is important to know that, even if only one spouse or civil partner owns the matrimonial home, they cannot force the other to leave the property without a Court order. This has not always been the case. Previously, the owner of the property was entitled to order the non-owner to leave. However, the non-entitled spouse or civil partner now enjoys the protection of the 1981 Act to occupy the property and cannot be forced to leave without a Court order.

Under the legislation, the non-entitled spouse or civil partner has the right to occupy the matrimonial home automatically, and this includes the right to occupy the home with any child of the family.

The matrimonial or family home is that which the spouses or civil partners intend to be used as a family home. It is irrelevant whether the spouses or civil partners have children. Properties which were acquired before the relationship can become matrimonial or family homes. Even if a spouse or civil partner bought a property before the relationship, if the couple subsequently live at that property, it will become a matrimonial or family home. Therefore, the intention behind the property and the use of it is important. If you have more than one family home, for example a holiday cottage or townhouse that you spend time in as a family, your occupancy rights will apply here also.

These rights will continue, even if the spouses or civil partners separate. If however, the spouses or civil partners separate, the non-entitled spouse/civil partner’s occupancy rights will extinguish after a continuous period of two-year non-cohabitation during which the non-entitled spouse/civil partner doesn’t occupy the family home. Additionally, occupancy rights will terminate upon divorce or dissolution of the partnership.

If you do not have title to the family home that you live in with your spouse or civil partner, and you are considering separating, you should be aware of your occupancy rights. The Legislation allows you to raise Court proceedings against your spouse or civil partner to have your occupancy rights declared, enforced and/or protected.  Our Family Law Solicitors can advise you if you are concerned about your rights to remain living in your home when you separate. We can also help you raise Court proceedings to declare, enforce and protect your occupancy rights.

Whilst the Matrimonial Homes (Family Protection) (Scotland) Act 1981 makes provision for the occupancy rights for cohabiting couples, the rights in relation to “non-entitled” cohabitants differ to those of a “non-entitled” spouse/civil partner. Whilst a “non-entitled” spouse/civil partner has automatic occupancy rights by virtue of the Legislation, “non-entitled” cohabitants must apply to the Court for occupancy rights in the family home. The Court will grant occupancy rights for a period of 6 months if it is satisfied that the couple has in fact been cohabiting in the family home together. After that six month period has elapsed, a further application must be made to the Court for another 6 months. Essentially, “non-entitled” cohabitants must prove to the Court that they are in fact one half of the cohabiting couple, living in their family home, in order to secure 6 months’ worth of occupancy rights.

The process of applying for occupancy rights if you are a non-entitled spouse can be complex. We can help and guide you through this process. Speak to one of our today and enjoy the peace of mind that you can rightfully occupy