Changes to family law

This content applies to Scotland only.

Housing laws vary between Scotland and England. This page applies to Scotland only. Get advice relating to England

On 4 May 2006, family law in Scotland changed substantially. These changes may affect your housing rights as well. This page outlines the main changes at a glance.

New law

On 4 May 2006, a new law came into force in Scotland. The new law is an Act called the Family Law (Scotland) Act 2006 . It makes several important changes to family law and these changes may also affect your housing rights.

Relationship breakdown

If your relationship has ended, or is about to end, this may affect where you live. The changes in the law may affect you.

Divorce

One of the main changes to family law is the reduction in the time you'll have to wait if you're married and you want to get a divorce. You can find out more about divorce on the Citizens Advice Scotland Adviceguide website. You must get legal advice from a solicitor who specialises in family law as soon as possible if this affects you. Visit the Family Law Association website to find a solicitor near you.

Definition of 'family home'

If you're splitting up with your partner, it's important to find out what'll happen to the home you shared together. The legal definition of what a 'family home' is has changed a bit. Our page on the family home explains more.

Dividing your home

If you are married and you own your home, the new law also gives the courts extensive powers to decide what will happen to the property you own with your husband or wife (including your house) when you get divorced. Before the law changed, you could ask the court to decide what would happen to the property if you had separated from your partner but now you have to wait until you've reached the stage of divorce.

If you lived (or 'cohabited') with your partner but have now split up, the new law gives you a right to an equal share in household money that was used to buy property. However, it's important to realise that this does not include your house.

Rights to keep living in your home

If you are splitting up from your partner, your right to keep living in your home may depend on whether or not you have legal rights called 'occupancy rights'. The new law means that, if you have occupancy rights, they won't apply indefinitely but will run out two years after the date on which you stopped living together (unless you stopped living together before 4 May 2006). So, you won't be able to rely on your occupancy rights after a certain date. There are complicated rules for working out when the two year period will run from and you should speak to a solicitor who specialises in family law for further advice.

If you are married or in a civil partnership, you get occupancy rights automatically because of the legal status of your relationship. If you are living (or 'cohabiting') with your partner, you have to ask the court to give (or 'grant') you occupancy rights. However, before the new law came into force, you could only ask the court to give you occupancy rights if you were living with your partner in a heterosexual relationship. The new law has changed this so that couples living together in lesbian and gay relationships can also now ask the court for occupancy rights.

Domestic abuse

If the person you live with is violent or abusive to you, or if your relationship has already broken down because of domestic abuse and you feel unsafe in your home, there may be several options available to offer you protection. If you are in immediate danger, phone the police on 999.

There are also several court orders that you may be able to get to stop the abusive behaviour and the new law has introduced some further measures.

Interdicts

Interdicts are court orders that stop a person from doing something (such as threatening you) or going somewhere (such as hanging about outside your house). There are different kinds of interdicts and the new law has made several changes to the way in which these work.

For example, general interdicts can now be used to stop a person from going to your children's school as well as your home.

There are other, more specific types of interdict called 'matrimonial interdicts' and 'relevant interdicts'. Before the new law came into force, these interdicts could stop certain forms of violent and abusive behaviour and could forbid your partner from being in the area of the family home once he or she had been put out. The new law means that matrimonial and relevant interdicts now also cover your workplace, your second home (if you are living somewhere else) and, if you have children, the school that they go to. However, the new law makes it clear that these interdicts have a specific purpose and are not to be used as an easy way of banning your partner from the home. Again, you should speak to a solicitor specialising in family law for further advice.

The new law has also introduced another kind of interdict that may help to protect you. These are called 'domestic interdicts'. They have a similar effect to matrimonial and relevant interdicts but apply to people who are not married or in a civil partnership but who are living with a partner ('cohabiting'). In other words, you can now get the same protection from the court as couples who are married or in a civil partnership so it's a big change. If you get a domestic interdict from the court and your partner doesn't do what it says, they can be arrested (see 'powers of arrest' below).

Powers of arrest

If you've got an order, such as an interdict or exclusion order, from the court to protect you from domestic abuse, or to get your partner out of the house, the order might also have a 'power of arrest' attached to it.

This means that, if your partner doesn't do what the court order says, he or she can be arrested by the police. The new law says that powers of arrest attached to court orders now expire after three years after the date on which they were granted by the court.

Further information

You can find out more about taking legal action if you're experiencing domestic abuse here.

Rights on death

If the person you live with dies, it's devastating. On top of all the emotional upset, the death of your partner can also have a huge impact on your housing rights, especially if you don't have any ownership rights yourself and your partner hasn't left a will (in other words, if they have died 'intestate').

Before the new law came into force, you were only entitled to a share of your partner's house when they died if you were either married to, or in a civil partnership with them. If you weren't, you had no rights under the law of intestacy to inherit any of your partner's property (including your home), no matter how long you had lived there.

However, the new law has changed this so that you can now ask the court to give you some of your partner's property (or 'estate') if they die without leaving a will. This can include giving you legal ownership of your home but it's up to the court to decide what's appropriate in your particular case. Other people may also be entitled to your partner's property (for example, if your partner was still married, or in a civil partnership with, someone else, or if they had children) and each case will be different. Our page on intestacy has more information but this is a complicated area and you should get further advice from a solicitor or law centre if you're in this situation.