Using the court to resolve disputes
This page explains how the court can help resolve your housing issues. Court orders are not granted automatically, and the sheriff will need to look at both your situation and your partner's situation before making a decision.
This page only offers an introductory guide to the law, so speak to your solicitor before coming to any decisions. Remember, taking legal action can be expensive and upsetting, so it's usually best to try and resolve things between yourselves before resorting to the courts.
How can the court help?
If you and your spouse or partner are unable to reach an agreement about who should continue to live in your home and who should move out, you can apply to the sheriff court to make this decision for you. You can also apply for court orders to restrict or regulate your spouse or partner's use of your home until you have reached a final decision. These orders may be useful if you have no choice but to remain living in the same property until your situation is resolved (for example, until you can sell your home or find new rented accommodation).
If you and your husband or wife are getting divorced, or if you and your civil partner are getting your partnership dissolved, your housing situation will usually be sorted out as part of the divorce or dissolution proceedings. Again, if you can't agree over who should stay in the home, or whether you should sell the family home, you can apply to the court to resolve the situation for you.
Who can apply for a court order?
You can apply for court orders if:
- you are married, or
- you have registered a civil partnership, or
- you live with your partner and have had occupancy rights granted. This includes same sex and opposite sex couples.
Anyone can apply for a general interdict (see 'protecting yourself from abuse or harassment' below).
You can apply for court orders to help resolve disputes over rented or owner occupied property.
What does the court need to consider?
Court orders are not granted automatically on application. The court will weigh up the circumstances of your case before making a decision. When considering whether to grant an order, the court must take into account:
- how you and your spouse or partner have behaved towards each other (for example, if your partner has been violent towards you, the court is unlikely to grant an order enforcing their occupancy rights)
- the needs of any children you have
- the needs of you and your spouse or partner and your financial situations
- whether either of you uses your home in connection with your job or business
- whether the partner whose name is on the tenancy agreement or who owns the home has offered the non-entitled partner any alternative accommodation.
What can I ask the court to do?
The court can make decisions in the following situations.
Paying for your accommodation
You can apply to the court for an order to divide up any expenditure you and/or your spouse or partner have made in connection with the family home (for example, for repairs, furniture, rent or mortgage, council tax, insurance, etc). The court can then order you and/or your spouse or partner to make the payments. The court will take into account both your financial situations when making its decision.
Enforcing your occupancy rights
For example, you can apply to the court for an order to enforce your occupancy rights if you have moved out and your partner now won't let you move back in again, or if your partner is trying to evict you illegally.
Restricting your spouse or partner's occupancy rights
For example, you may ask the court for an order that prevents your spouse inviting certain people to your home, such as a new partner.
Regulating how your spouse or partner uses your home
For example, you can request an order which divides up the use of the property between you and your partner, or which regulates when you can use certain parts of the property.
Regulating your partner's behaviour outside the home
You can apply to the court for an order to regulate the way your partner behaves outside the home. This might include limiting her/his access to your child's school or your new home or preventing her/him from visiting your place of work.
Protecting your occupancy rights
For example, you can apply for an order preventing your partner from taking any action that affects your occupancy rights, such as ending the tenancy without your consent. However, even if you have occupancy rights granted, you can't obtain an order to prevent your partner selling their home without your consent if you are not married or in a civil partnership.
Transferring the tenancy
If you and your partner rent your home and can't agree on who should carry on living there, you can apply to the court for a transfer of tenancy.
Excluding your partner from the home
None of the court orders listed above can be used to evict or exclude your spouse or partner from your home. If your partner is violent or abusive towards you or your children, you can apply to the court for an exclusion order to suspend their rights to live in your home. It's not easy to get an exclusion order and you must speak to a solicitor who specialises in family law to discuss whether this is an option for you.
Protecting yourself from abuse or harassment
If your partner is threatening you, harassing you or harming you in any way, you can also apply for a general interdict or a non-harassment order. These remedies are open to anyone, including same sex couples who have not registered a civil partnership.
As well as general interdicts (which anyone can apply for), there are also other more specific types of interdict that can be used to stop certain forms of violent and abusive behaviour. These specific orders are:
- matrimonial interdicts (if you are married)
- relevant interdicts (if you are a civil partner)
- domestic interdicts (if you are neither married nor a civil partner but you live with your partner).
These interdicts can be used for a variety of things, including to keep your partner away from your home, any second home you are living in, your workplace and your children's school. These interdicts may also be used to keep your partner out of your home but only if you apply for it along with an exclusion order. These interdicts are not the same thing as an exclusion order.
This page can only give an outline of the way in which these interdicts can protect you. You must speak to a solicitor who deals with family law for more detailed advice.
Can I get a court order changed?
You may be able to get certain court orders changed or recalled if your circumstances change. For example, if you have been ordered to make payments for your partner's rent or mortgage, you may be able to get this order changed if you lose your job or fall ill and can no longer work. Speak to your solicitor if you are in this situation.