Exclusion orders for civil partner owner occupiers

An exclusion order suspends a civil partner's rights of occupancy [1] but does not affect the long-term ownership 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 that would be harmful to their physical or mental health. [2] The partner applying for the exclusion order (the applicant partner) does not need to be living in the family home at the time of seeking an exclusion order. [3]

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. [4]

Either civil partner can apply to the court to recall or vary the exclusion order. [5] If neither civil partner makes such an application, the exclusion order will last until:

• the civil partnership is dissolved

• the entitled partner ceases to be an entitled partner, for example, because s/he renounced her/his occupancy rights

• both civil partners lose their permission to occupy the family home, for example, where they are evicted following repossession. [6]

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

• a warrant of ejection, which is 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 family home without the written consent of the applicant partner or through a court order. [7]

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. [8] As a result, they would not only be banned from the home but also from a specified area around the home.

Court orders are also available to restrain or prohibit the conduct of the non-applicant partner towards either the applicant partner or any child of the family. The orders can also prohibit the non-applicant partner from entering or remaining in:

• any other residence occupied by the applicant partner

• any place of work of the applicant partner

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

For more information, please see the page on interdicts.

The courts must, on application, attach powers of arrest to interdicts granted ancillary to exclusion order or interim exclusion orders. [9]

The courts can grant an interim exclusion order pending the hearing for a full exclusion order. Ancillary orders can also be attached to it. [10] The non-applicant partner has to be given the opportunity of making her/his case in court. [11]