1 Right of spouse without title to occupy matrimonial home.S
(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 [F1to continue to occupy the matrimonial home;]
(b)if not in occupation, a right to enter into and occupy the matrimonial home.
[F2(1A)The rights conferred by subsection (1) above to continue to occupy or, as the case may be, to enter and occupy the matrimonial home include, without prejudice to their generality, the right to do so together with any child of the family.]
(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) above, the non-entitled spouse may exercise that right only with the leave of the court under section 3(3) 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.
[F3 In this subsection, “ notary public ” includes any person duly authorised by the law of the country (other than Scotland) in which the swearing or affirmation takes place to administer oaths or receive affirmations in that other country. ]
[F4(7)Subject to subsection (5), if—
(a)there has been no cohabitation between an entitled spouse and a non-entitled spouse during a continuous period of two years; and
(b)during that period the non-entitled spouse has not occupied the matrimonial home,
the non-entitled spouse shall, on the expiry of that period, cease to have occupancy rights in the matrimonial home.
(8)A non-entitled spouse who has ceased to have occupancy rights by virtue of subsection (7) may not apply to the court for an order under section 3(1).]
Textual Amendments
F1Words substituted by Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73, SIF 49:6), ss. 13(2), 60(6)
F2By Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73, SIF 49:6), ss. 13(3), 60(6) it is provided that s. 1(1A) is inserted after s. 1.
F3Words added by Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73, SIF 49:6), ss. 13(4), 60(6)
F4S. 1(7) (8) added (4.5.2006) by Family Law (Scotland) Act 2006 (asp 2), ss. 5, 46(2); S.S.I. 2006/212, art. 2 (with art. 3)
Modifications etc. (not altering text)
C1S. 1(5)(6) modified (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), ss. 14(2)(a), 21(2); S.S.I. 2003/384, art. 2(a)