Exclusion orders for cohabiting owner occupiers

An exclusion order will be granted where there has been or there is threatened physical or emotional abuse. [1] It is the perpetrator of that abuse who may be excluded from the home.

An exclusion order is an order of the court (sheriff court or Court of Session) that suspends a person's right to occupy the family home. It does not affect the ownership of the home in any way.

It will only be granted where both partners have occupancy rights. [2] In the case of cohabitants this means the partners must be joint owners or that the non-entitled partner must have applied to the court and been granted occupancy rights. [3] A cohabitee who is not the owner of the home can apply for grant of occupancy rights and if those are granted can apply for an exclusion order to exclude the owner. [4]

The action will be raised in the court that has jurisdiction over the area in which the family home is situated. The applicant should consult a solicitor; lay representation is not permitted in this court action.

An exclusion order can be granted on an interim (temporary) basis without hearing evidence from the applicant or defender provided s/he has had the opportunity of being heard or represented. [5]

The defender is served with a copy of the writ that details the allegations against her/him. S/he must be given at least 48 hours' notice of the hearing on the interim exclusion order. [6] Therefore the earliest court hearing on an exclusion order is three days from raising the action. In most courts it is likely to be one week from the time the action is first raised.

The court will expect to receive evidence by way of affidavits (sworn statements) and medical reports if available. The applicant may have to consider moving to a safe house during the time when her/his partner knows about the hearing and has a copy of the allegations made against her/him, before the court makes a decision.

The court may grant an exclusion order to protect the applicant partner or any child of the family if it thinks it is necessary for their protection from any conduct, reasonably feared conduct, or threatened conduct which is or would be harmful to their mental or physical health. [7]

The court will only make such an order if it believes that it is just and reasonable to do so. In deciding whether it is reasonable it will take the following factors into account: [8]

• the conduct of the parties to each other and in general

• the needs and financial resources of each party and any child of the family

• the extent to which the home or items in the home are used by either party in connection with their business, trade or profession

• whether the owner has offered to make alternative suitable accommodation available to her/his partner

• if there is a requirement for the defender to live in the house to carry out employment duties or work a farm.

Exclusion orders granted where the partners are joint owners will continue to have effect until one or both parties apply to have the order varied or recalled. [9]

If, however, one of the partners has occupancy rights that were granted by the court the exclusion order will cease to have effect when those occupancy rights expire. [10] Occupancy rights are granted for a maximum of six months at a time but can be extended through application to the court. [11]

If asked the court will also grant ancillary orders along with the exclusion order unless the non-applicant partner satisfies the court that it is unnecessary to do so. These orders include:

• a warrant of ejection, an order evicting the non-applicant spouse from the home, enforceable by sheriff officers

• a domestic interdict restraining or prohibiting conduct by the non-applicant partner towards the pursuer or a child in the care of the pursuer. If it was granted after 4 May 2006 a domestic interdict can also prevent the non-applicant partner from entering the home, other residence or workplace of the applicant or the school of any child without permission [12]

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

The court must, if asked, attach a power of arrest to any matrimonial interdict that is granted ancillary to an exclusion order. [13]

A cohabitee who has not been granted occupancy rights could not be the subject of an exclusion order. However, s/he could be lawfully excluded from a family home by a notice followed by ejection order.

For example, where there is a sole owner and s/he is living with a violent partner who does not have occupancy rights, s/he cannot rely on the protection under the Matrimonial Homes (Family Protection) (Scotland) Act 1981.

Such a cohabitee would have to apply to the court for an ejection order and would also be able to apply for an interdict if her/his partner was violent. S/he would need to use the powers available under the Protection from Abuse (Scotland) Act 2001 if s/he wished to attach a power of arrest to the interdict. For more information, please see the section on housing and domestic abuse.

If one partner is excluded by the other without order of court, the excluded partner can apply to the court for an order granting her/him occupancy rights and an order enforcing them. [14]