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Occupancy rights if you or your partner own your home

This page explains your rights when you split up from your wife, husband or partner and one of you owns the home.

How do I know what my rights are?

If you and/or your partner own your home and your relationship breaks down, your rights to stay in the family home will depend on:

  • who owns the property
  • whether or not you and your partner are married or in a civil partnership.

Who owns the property?

The owner of a property is the person whose name is on the title deeds. Title deeds are registered with the Land Register of Scotland or recorded in the General Register of Sasines. These registers contain information about the ownership of all land in Scotland.

A property can be owned by just one person (a sole owner), or it can be owned jointly. If you and your partner own your home together, both your names will be on the title deeds. The person whose name is on the title deeds doesn't necessarily need to be the person who has paid for the home or taken out a mortgage to pay for it. It is possible to get the title deeds amended, but there is a charge for this as the land register needs to be amended and a solicitor needs to be involved.

My name is on the title deeds

If your name is on the title deeds, either as a joint or sole owner, you have a legal right to live in the property and no-one can force you to leave without a court order. A husband, wife or partner whose name is on the title deeds is known as an 'entitled' spouse or partner.

My name is not on the title deeds

If your name is not on the title deeds, your rights to live there will depend on the legal status of your relationship.

How does the legal status of our relationship affect occupancy rights?

My partner and I are married or in a civil partnership

Even if your name is not on the title deeds, you automatically acquire the right to live in the family home when you get married or register a civil partnership. If your name is not on the title deeds, you will be a 'non-entitled spouse' or 'non-entitled partner'. Your right to occupy the home will last either until:

  • you divorce or dissolve your civil partnership, or
  • you leave the family home and do not return for two years or more. You will only lose your rights in this way if, during the two years, you did not live with your partner/spouse or live in the family home. If you left the family home before 4 May 2006 then your right to return will last until you get divorced or 'renounce' (give up) your right to live there.

This is a complex area of law and you should consider consulting a solicitor for more detailed advice.

My partner and I live together

If you live together but are not married (in other words, if you are 'cohabiting' with your partner) and your name is not on the title deeds, you won't automatically have occupancy rights, even if you have children. This means that if you and your partner split up, you may not have a right to live in the home any more if your partner wants you to leave.

You may be able to assert your rights to stay there if you have made a financial contribution to the home (for example, if you have been making payments towards the mortgage, or have paid for improvements or repairs to be carried out).

You can also apply to the sheriff court to have occupancy rights granted to you (see 'how do I apply for occupancy rights' below).

I'm gay and live with my partner

If you are in a same-sex relationship, you will automatically have occupancy rights if you have registered a civil partnership after December 2005.

If you have not registered a civil partnership, you will have the same rights as any other couple that live together (see above). This means that you will have to apply for occupancy rights.

How do I apply for occupancy rights?

Before you apply for a court order granting you occupancy rights, you'll need to get legal advice from a solicitor specialising in family law or from a law centre.

A solicitor will be able to:

  • advise you on whether the court is likely to grant you occupancy rights
  • suggest other ways of resolving your situation
  • apply for a court order for you
  • represent you in court.

If you are on benefits or a very low income, you may be able to get legal aid to help pay your expenses. 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.

To get occupancy rights granted, you will need to apply to your local sheriff court - you can find the address, and more information, from the Scottish Court Service. If you have a solicitor, they can do this on your behalf.

How does the court decide whether to grant occupancy rights?

When deciding whether to grant you occupancy rights, the court will take into account:

  • how long you and your partner have been living together
  • whether you have any children together
  • your financial resources and those of your partner
  • whether you have any alternative accommodation available
  • your behaviour and the behaviour of your partner.

It's important to remember that the court won't grant you occupancy rights automatically. Your partner can oppose the granting of occupancy rights and the court will have to take their objections into account. The court may not grant the order if, for example, you have been abusive towards your partner.

If occupancy rights have been granted, the court can regulate the living arrangements while you both remain in the property.

How long does it take to get occupancy rights granted?

This really depends on your circumstances and you should speak to your solicitor. Your solicitor will be familiar with the court in your area and will be able to give you more detailed advice.

In an emergency (for example, if your partner has just thrown you out of your home), you may be able to get a court order quickly. Speak to your solicitor about your personal situation.

How long do occupancy rights last for?

This depends on the type of relationship you're in. If you are married or in a civil partnership (and, therefore, have occupancy rights automatically), then they apply indefinitely until either:

  • you divorce or dissolve your civil partnership, or
  • you leave the family home and do not return for two years or more. You will only lose your rights in this way if, during the two years you did not live with you partner/spouse or live in the family home (see 'how does the legal status of our relationship affect occupancy rights?' above).

If you are living with your partner and the court has granted you occupancy rights, the court order will set out how long your occupancy rights will last for. This can be up to six months. When this time is up, you can apply to have your occupancy rights renewed. You'll need to remember to do this - you won't get a reminder.

The court order gives you the right to live in the property as long as your partner is entitled to live there. If they sell the home or the mortgage lender repossesses it, you will no longer have a right to stay there.

Is it worth applying for occupancy rights?

If you aren't eligible for legal aid then applying for occupancy rights will be expensive. Depending on your circumstances, you may be better off saving your money and looking for a new home instead.

However, if you have children or think it will be hard to find new accommodation that's suitable for you, then it may be a good idea to apply for occupancy rights. This will mean you will have rights to stay on in your partner's home until you can find a new place to live.

If your partner is planning on selling the home and you think you may be entitled to a share in the proceeds, it may be worth applying for occupancy rights so you can remain there until the sale goes through.

Talk to a solicitior or an adviser at a Shelter advice centre or Citizens Advice if you're in this situation.

Where can i get more help?

This section only gives an introduction to the law. If your relationship ends and you are worried about what will happen to your home, use the Advice Services Directory to find a Shelter advice centre, Citizens Advice or other advice service in your area, so you can discuss your situation in person with an adviser.

Scotland map Housing laws differ between Scotland and England.
This content applies to Scotland only.
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The important points

  • If you and/or your partner own your home and your relationship breaks down, your rights to stay in the family home will depend on who owns the property and whether or not you and your partner are married or in a civil partnership.
  • The owner of a property is the person whose name is on the title deeds.
  • If your name is on the title deeds, either as a joint or sole owner, you have a legal right to live in the property and no-one can force you to leave without a court order.
  • Even if your name is not on the title deeds, you automatically acquire the right to live in the family home when you get married or register a civil partnership.

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