MATRIMONAIL HOMES (FAMILY PROTECTION) SCOTLAND ACT 1981

amended by Law Reform Miscellaneous Provisions (Scotland) Act 1985
1. came into force September 1992
  1. creates occupancy rights for the benefit of non-entitled spouses
s101 Civil Partnership Act 2004
and Famil Law (Scotland) Act 2006
main thrust - to create occupancy right of spuse/civil partner
1. even if the inital spouse withdraws consent
depends on how title is taken
1. if both have title, both are entitled
2. if only one takes title
  1. even where consent has been withdrawn
    1. the non entitle spouse is entitled to occupy
      1. it is an enforceable right
      2. Stevenson v Roy - dicusses non entitled rights to occupy
        also be protected against the transfer of heritable property
        s6(3)(f) 1981 Act - loss of rights due to lapse of time and relevance of unsuccessful attempt to reoccupy
    2. Steele v Caldwell
s18, 1981 Act - primary condition to establish that cohabitation existed at date when court considered the case
1. Verity v Fenner
2. s18(3) applies to cohabiting couples
  1. contrast with Armour v Anderson
    1. by the time the action was raised ceased to cohabit
      1. sheriff principal said outwith provision of 1981 Act
        decision reversed on appeal, as cohabiting when relevent events occured
        application was competent
s4(1) exclusion orders
1. can extend to cohabitees
2. similar rights in favour of family of bankrupt
  1. Bankruptcy (Scotland) Act 1985 s40
s22 - Matrimonial Home - definition
1. house, caravan, house boat or other structure
  1. includes any garden, or ground, or building attached
    1. usually occupied with required for amenity & convenience of the relevant residence
      1. but does not include recidence provided or made available by one spouse for that spouse to reside in
        whether with any child of the family or not, separately from the other spouse
2. provided or made available by one or both spouses, as a family residence
in disposition you could have consensus to that dealing
1. non entitled spouse would consent to the sale
  1. clause renouncing 1981 act
    1. general renouncement by affidavit
    2. occupancy rights persist thro' marriage
      1. cease on divorce
        actual divorce must take place, but could have been separated for yrs
        renounciation via separation agreement not enough for sale of property
      2. court can make an order for transfer on death
3 kinds of deeds
1. required in every case, not just for a matrimonial home
  1. missives frequently get this wrong
  2. renounciation of occupancy rights
    1. no prescribed form - usually recorded in B of C&S
    2. consents to dealing
      1. there is a prescribed style
      2. Affidavit, that there is no entitled spouse
        no prescribed style

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MATRIMONAIL HOMES (FAMILY PROTECTION) SCOTLAND ACT 1981

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	Created by mary1503 about 11 years ago