Taking legal action
If you and your partner cannot resolve your housing issues between you, you may have to go to court. This page looks at what you need to do before considering court action, and how you can pay for it.
What should I consider before taking legal action?
Taking legal action can be expensive and upsetting, so think carefully and get advice from a Shelter advice centre, Citizens Advice or solicitor before making any decisions. If you can't come to an agreement with your partner but the situation is still fairly amicable, you could consider mediation. Family mediators can help couples who have decided to split up come to a arrangement about the family home, financial issues and care of children without involving the courts. You should still discuss the outcome of any mediation sessions with a solicitor before coming to a final agreement.
Sometimes the threat of court action (for example, a letter from your solicitor) may be enough to sort the problem out. Or your solicitor may be able to come to a compromise with your partner's solicitor without resorting to the courts.
What can the court decide?
The court can make decisions about almost any aspect of your housing situation. For example, it can decide:
- who will live in your home in the short term
- who will stay in your home in the long term
- if you own your home, whether or not it can be sold and how the proceeds should be divided
- to transfer ownership of your home to you or your partner
- to transfer the tenancy of your home to you or your partner
- how the accommodation can be used (for example, you may be able to get an order to prevent your partner inviting certain people into your home).
Will I need legal advice?
Before you apply for a court order to resolve your housing issues, you'll need to get legal advice from a solicitor who specialises in family law or from a law centre.
A solicitor will be able to:
- advise you on whether the court is likely to make the decision you want
- suggest other ways of resolving your situation (such as negotiating with your partner's solicitor)
- apply to the court for you
- represent you at court.
You can find a family law solicitor at the Family Law Association or Law Society of Scotland websites, and you can also ask an adviser at your local Citizens Advice to recommend one for you. You can find out more about getting a solicitor here.
How much will it all cost?
If you aren't eligible for legal aid then going to court can be very expensive. It will probably cost you at least £700 to raise an action in court. You'll need to think very carefully about whether you really need to go to court to resolve your situation, and whether it will be worth it.
Can I get help to pay my legal expenses?
You may be able to get legal aid to help pay your legal expenses. Your lawyer will be able to tell you whether you are eligible for legal aid and what contribution you will have to pay. Your partner's income and capital will not be taken into account when calculating whether you are eligible.
If you need your solicitor to act urgently, you may be able to get emergency legal aid.
Find out more about legal aid.
Some solicitors or law centres may offer an initial free interview. Your local Citizens Advice can also offer you advice on your options, and can help you find a solicitor in your area.
How do I get a court order?
To get a court order, you need to apply to your local sheriff court - you can find the address from the Scottish Court Service. Certain cases may have to be dealt with by the Court of Session in Edinburgh. You should seek advice from a solicitor, who can make the application for you and represent you in court.
How long does it take to get a court order?
This will depend on your circumstances, such as why you need the court order. In an emergency, you may be able to get a court order quickly. Ask your solicitor about your personal situation.