MATRIMONAIL HOMES (FAMILY PROTECTION) SCOTLAND ACT 1981

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Mind Map on MATRIMONAIL HOMES (FAMILY PROTECTION) SCOTLAND ACT 1981, created by mary1503 on 04/14/2013.

Resource summary

MATRIMONAIL HOMES (FAMILY PROTECTION) SCOTLAND ACT 1981
1 amended by Law Reform Miscellaneous Provisions (Scotland) Act 1985
1.1 came into force September 1992
1.1.1 creates occupancy rights for the benefit of non-entitled spouses
2 s101 Civil Partnership Act 2004
3 and Famil Law (Scotland) Act 2006
4 main thrust - to create occupancy right of spuse/civil partner
4.1 even if the inital spouse withdraws consent
5 depends on how title is taken
5.1 if both have title, both are entitled
5.2 if only one takes title
5.2.1 even where consent has been withdrawn
5.2.1.1 the non entitle spouse is entitled to occupy
5.2.1.1.1 it is an enforceable right
5.2.1.1.2 Stevenson v Roy - dicusses non entitled rights to occupy
5.2.1.1.2.1 also be protected against the transfer of heritable property
5.2.1.1.2.1.1 s6(3)(f) 1981 Act - loss of rights due to lapse of time and relevance of unsuccessful attempt to reoccupy
5.2.1.2 Steele v Caldwell
6 s18, 1981 Act - primary condition to establish that cohabitation existed at date when court considered the case
6.1 Verity v Fenner
6.2 s18(3) applies to cohabiting couples
6.2.1 contrast with Armour v Anderson
6.2.1.1 by the time the action was raised ceased to cohabit
6.2.1.1.1 sheriff principal said outwith provision of 1981 Act
6.2.1.1.1.1 decision reversed on appeal, as cohabiting when relevent events occured
6.2.1.1.1.1.1 application was competent
7 s4(1) exclusion orders
7.1 can extend to cohabitees
7.2 similar rights in favour of family of bankrupt
7.2.1 Bankruptcy (Scotland) Act 1985 s40
8 s22 - Matrimonial Home - definition
8.1 house, caravan, house boat or other structure
8.1.1 includes any garden, or ground, or building attached
8.1.1.1 usually occupied with required for amenity & convenience of the relevant residence
8.1.1.1.1 but does not include recidence provided or made available by one spouse for that spouse to reside in
8.1.1.1.1.1 whether with any child of the family or not, separately from the other spouse
8.2 provided or made available by one or both spouses, as a family residence
9 in disposition you could have consensus to that dealing
9.1 non entitled spouse would consent to the sale
9.1.1 clause renouncing 1981 act
9.1.1.1 general renouncement by affidavit
9.1.1.2 occupancy rights persist thro' marriage
9.1.1.2.1 cease on divorce
9.1.1.2.1.1 actual divorce must take place, but could have been separated for yrs
9.1.1.2.1.1.1 renounciation via separation agreement not enough for sale of property
9.1.1.2.2 court can make an order for transfer on death
10 3 kinds of deeds
10.1 required in every case, not just for a matrimonial home
10.1.1 missives frequently get this wrong
10.1.2 renounciation of occupancy rights
10.1.2.1 no prescribed form - usually recorded in B of C&S
10.1.2.2 consents to dealing
10.1.2.2.1 there is a prescribed style
10.1.2.2.2 Affidavit, that there is no entitled spouse
10.1.2.2.2.1 no prescribed style
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