Exclusion orders for cohabiting tenants

An exclusion order is an order of the court (sheriff court or Court of Session) which suspends a person's right to occupy the matrimonial home, whether s/he is the tenant or not. It does not affect the ownership or tenancy of the home.

The action will be raised in the court that has jurisdiction over the area in which the matrimonial home is situated.

The applicant can raise the action on her/his own behalf but it would not be easy. There are no standard forms. The applicant would be responsible for preparation of all her/his own paperwork and representation in court. In an exclusion order action, an applicant can only be represented by a solicitor or advocate. Lay representation is not allowed.

An exclusion order can be granted on an interim (temporary) basis without hearing evidence from the applicant or defender. An application for an interim exclusion order can be made at any time after the action has been served on the defender.

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. [1] 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.

When granting an exclusion order the court may also grant orders interdicting the excluded person from removing household goods from the home and/or entering a specified area surrounding the home.

An exclusion order may be granted when: [2]

• both parties have occupancy rights

• the exclusion order relates to the matrimonial home

• there has been specific conduct by the defender

• there has been a threat of conduct or the conduct can be reasonably anticipated

• the conduct has been or would be injurious to the physical and mental health of the applicant or a child of the family

• the conduct and its effect can be proved, or reasonably anticipated from behaviour which can be proved

• the conduct is likely to be repeated

• the exclusion order is necessary for protection

• the exclusion order is just and reasonable.

The court will consider the following [3] in deciding whether an exclusion order is just and reasonable:

• 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 entitled spouse has offered to make alternative suitable accommodation available to the non-entitled spouse

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

When granting an exclusion order the court must also grant an interdict preventing the excluded person from re-entering the home if asked to do so by the applicant. [4]

Either partner can apply to the court to recall (suspend) or vary the exclusion order. If neither partner does so the order will cease to have effect on either or both partners ceasing to be entitled to occupy the home.

If asked the court will also grant ancillary orders (unless the non-applicant partner satisfies the court that it is unnecessary to do so) [5] along with the exclusion order including:

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

• a matrimonial interdict preventing the non-applicant partner from entering the home without the applicant partner's expressed permission

• an interdict to stop the non-applicant partner from removing furniture from the home without the written consent of the applicant partner or through a court order. [6]

The court may also grant an interdict to prevent the non-applicant partner from entering or remaining in a specified area in the vicinity of the home. [7]

The applicant partner should not need to be living in the home at the time of seeking an exclusion order, [8] although any order sought should relate to behaviour that occurred while the couple were living together.

The courts can grant an interim exclusion order pending the hearing on the full exclusion order. Ancillary orders can also be attached to it. The non-applicant partner has to be given the opportunity of making her/his case in court. [9]

The tenant or her/his partner can apply to the courts to have powers of arrest attached to interdicts granted along with an exclusion order or interim exclusion order. Where the applicant partner has applied for the powers of arrest to be attached to a matrimonial interdict granted along with an exclusion order or interim exclusion order, the courts have to grant them. [10] It is at the courts' discretion to attach powers of arrest to other matrimonial interdicts. [11]

In situations where a partner is violent or abusive, the other partner can use the provisions of the Protection from Abuse (Scotland) Act to attach powers of arrest to an interdict. For further information, please see the section on housing and domestic abuse.

Where accommodation is provided as part of employment the court will take this into account in deciding whether or not to grant an exclusion order. [12] This would similarly apply where the home is or is part of an agricultural holding. [13] The courts will look at the likely effect of any exclusion of the non-applicant partner including the availability of local housing that the excluded partner could access and still do their job.

If there is a sole tenant and her/his partner has been granted occupancy rights s/he will be a residential occupier, ie someone who under a contract or by virtue of any enactment has a right to occupy the property as a residence and who cannot be deprived of that occupation without due process of the law. [14] Thus any attempt to put out or keep out a non-entitled partner without a court order is illegal.