Remedies for civil partners

Occupancy rights to the family home are automatically granted to a civil partner who is not the tenant or home owner by virtue of the civil partnership. [1] A civil partner can apply to the court for an order declaring and/or enforcing her/his occupancy rights. [2]

However, the non-entitled civil partner will stop having the right to occupy the home if s/he ceases to cohabit with the entitled partner and does not occupy the family home for a period of two years. [3] This will only be the case where the couple ceased to cohabit on or after 4 May 2006 when the relevant legislation came into effect. [4] In calculating the two-year period the court will disregard any time during which either spouse was seeking: [5]

• an order declaring, enforcing, restricting, regulating or protecting the occupancy rights of either partner

• an exclusion order suspending the occupancy rights of either partner

• a variation or recall of any order relating to occupancy rights.

The period that is discounted begins on the date on which an application is made for an order (or the variation of an order) and ends when such an order is granted or the application is dismissed. [6]

For more information, please see the section on civil partner tenants and the section on civil partner owners.

An exclusion order suspends a civil partner's rights of occupancy [7] but does not affect the long-term tenancy of the home. The court may grant an exclusion order to protect the applicant civil partner or any child of the family from any conduct, threatened conduct or reasonably feared conduct which would be harmful to their physical or mental health. [8]

The court may make an order if it is just and reasonable to do so. It must consider:

• the conduct of the civil partners

• their respective needs and financial resources

• the needs of any children

• the extent to which the home is used in connection with any trade or business

• whether one civil partner has offered the other suitable alternative accommodation. [9]

The applicant partner does not need to be living in the family home at the time of seeking an exclusion order. [10]

The courts can grant an interim exclusion order pending the hearing for a full exclusion order. Ancillary orders can also be attached to it. [11] The non-applicant partner has to be given the opportunity of making her/his case in court. [12] The non-applicant partner should be given at least 48 hours' notice of the hearing on the interim exclusion order. [13]

If asked, the court will grant ancillary orders along with the exclusion order including:

• a warrant of ejection, an order evicting the non-applicant partner from the home, unless the non-applicant partner satisfies the court that is unnecessary. Such a warrant is enforceable by sheriff officers

• an interdict preventing the non-applicant partner from entering the family home without the applicant partner's express permission

• an interdict to stop the non-applicant partner from removing furniture from the matrimonial home without the written consent of the applicant partner or through a court order. [14]

The court may also grant an interdict to prevent the non-applicant civil partner from entering or remaining in a specified area in the vicinity of the family home. [15] As a result, they would not only be banned from the home but also from a specified area around the home.

Court orders can be granted to prohibit the non-applicant partner from certain conduct towards the applicant partner and any children of the family. Such orders can also limit access to the family home and other areas such as the applicant's place of work.

Relevant interdicts can be granted even if the couple continue to live together in the family home. [16] They can be used to restrain or prohibit particular conduct from one partner to the other or any conduct towards any child of the family. [17] For example, such an interdict could prohibit violent behaviour or conduct which place the spouse and/or child in a state of fear and alarm.

A child of the family is defined by legislation as any child or grandchild of either person who has been brought up or treated by either civil partner as if they were a child of that partner, whatever the age of such a child, grandchild or person. [18]

Interdicts issued after 4 May 2006 can also be used to prevent the non-applicant partner from entering or remaining in: [19]

• the family home

• any residence, other than the family home, occupied by the applicant partner

• any place of work of the applicant partner

• any school attended by a child in the temporary or permanent care of the applicant partner.

If the non-applicant partner has a right to occupy the family home then interdicts can only be used to exclude her/him from the home entirely when [20] they are granted ancillary to an exclusion order or where an application to the court for occupancy rights by the non-entitled spouse has been rejected.

The applicant partner can apply to the courts to have powers of arrest attached to interdicts granted along with an exclusion order or interim exclusion order. [21] If asked, the court must grant the powers of arrest unless the non-applicant partner is already subject to an interdict already granted with powers of arrest attached under either the Civil Partnership Act 2004 or the Protection from Abuse (Scotland) Act 2001. [22]

Powers of arrest must also be attached, upon request, to exclusion orders and interdicts granted ancillary to exclusion orders. [23]

Power of arrest does not have effect until the interdict has been served on the non-applicant partner and will cease to have effect on the dissolution of the civil partnership, unless recalled earlier. [24]