Getting decisions made in court when you break up with someone

You may need to go to court if you and your partner cannot make decisions about your home.

The court can decide:

  • who pays for the home

  • who can live in the home

  • whether someone can return to the home once they move out

If you are married or in a civil partnership, divorce or dissolution will formalise an agreement when a relationship ends.

Citizens Advice has information on divorce and civil partnership dissolution. This covers what can be decided in court when a marriage or civil partnership ends.

You can also try arbitration or mediation to resolve a dispute. These can help you come to an agreement about your home.

What you can do in court

There are actions you can take in court to make decisions about your home.

A family law solicitor can help you decide what action to take.

Find a solicitor from the Law Society of Scotland or the Scottish Legal Aid Board.

Get legal help for free or at a lower cost through a law centre or legal aid.

Court orders about your home

A court order can be used to make decisions about your home, such as:

  • who will pay the rent or mortgage

  • who has a right to occupy the home

  • how your partner can behave towards you

If you are married or in a civil partnership, a court order can be put in place temporarily. This will end when any divorce or dissolution proceedings are settled.

You must have a right to occupy the home to apply for a court order, You will have occupancy rights if you:

  • are married or in civil partnership

  • are a tenant or joint tenant

  • are an owner or joint owner of the home

  • have occupancy rights granted in court

Getting occupancy rights give you the same rights and responsibilities as a tenant or owner. It means that:

  • you have the right to continue living in the home if the tenant or owner moves out

  • you cannot be evicted without a court order

  • you have the right to defend any eviction in court

  • you have the right and responsibility to pay the rent or mortgage

Occupancy Rights

If you have no legal right to occupy the home but want to remain there, you can apply for occupancy rights in court.

These can last up to six months.

Applying for occupancy rights can protect you from being evicted.

It can also give you the time to make other arrangements, such as:

  • getting the tenancy in your name

  • getting an owned property transferred to you

  • finding somewhere else to live if you decide to move out

You will need to speak to a family law solicitor to apply for occupancy rights in court.

To find a family law solicitor, search on the Law Society of Scotland or the Scottish Legal Aid Board websites.

There may be law centres in your area who can also help. Law centres can help with legal advice and representation.

Interdicts to restrict someone’s behaviour

You can use an interdict if you need to protect yourself or your children from someone. An interdict is issued in court and tells a person what they can or cannot do.

If a person breaks the order they can receive a fine or a prison sentence.

You can apply for an interdict against:

  • a spouse or civil partner, or

  • someone you live with

You can apply for an interdict banning a person from:

  • coming within a certain distance of your home, work or your child's school

  • doing anything to frighten, alarm or distress you or your children

You may need a right to occupy the home to apply for an interdict. You will have occupancy rights if you:

  • are married or in civil partnership

  • are a tenant or joint tenant

  • are an owner or joint owner of the home

  • have occupancy rights granted in court

An interdict will not be granted without a court hearing. The person accused must have a chance to defend themselves.

You can ask the court for an interim interdict. This will give you temporary protection, while you are waiting for your case to be heard.

Non-harassment order

If you need to stop someone harassing you, you can take out a non-harassment order. This is sometimes called a restraining order.

The person harassing you can face arrest, imprisonment or a fine if they break the order.

Anyone who is being harassed can apply for a non-harassment order.

Harassment is something that causes you alarm or distress. Whatever the person is doing, it has to have happened more than once.

You can apply for a non-harassment order if:

  • the person’s behaviour has happened on at least two occasions, and

  • you need protection from them

A non-harassment order will not be granted without a court hearing. The person accused of harassment must have a chance to defend themselves.

You can ask the court for an interim order. This will give you temporary protection, while you are waiting for your case to be heard.

Exclusion order

You can apply for an exclusion order to stop someone coming into your home.

An exclusion order can last up until the end of a marriage or civil partnership. It will expire if you both end the tenancy, or sell the home.

It will only last up to six months if you are not married or in a civil partnership.

To apply for this, you must have a right to occupy the home. You will have occupancy rights if you:

  • are married or in civil partnership

  • are a tenant or joint tenant

  • are an owner or joint owner of the home

  • have occupancy rights granted in court

You do not need to be living in the home when you apply for an exclusion order. You can do it while you are staying somewhere else temporarily.

You can ask the court for an interim exclusion order. This will give you temporary protection, while you are waiting for your case to be heard.

You can also try arbitration or mediation to resolve a dispute. These can help you come to an agreement about your home.

Last updated: 30 June 2021

Housing laws differ between Scotland and England.

This content applies to Scotland only.

Get advice if you're in England