Cohabiting tenants and the law on relationship breakdown

The act that has an impact on the resolution of disputes between cohabiting couples is the Matrimonial Homes (Family Protection) (Scotland) Act 1981 (referred to as the Matrimonial Homes Act).

For the purposes of the Matrimonial Homes Act cohabiting is defined as those living together as husband and wife or civil partners. [1] In deciding whether a couple are cohabiting the court will take into account all the circumstances of the case including how long they have been living together and if there are any children to the relationship. [2]

This Act covers all tenants regardless of their type of tenancy, whether Scottish secure, secure, assured, regulated and common law:

• It regulates how joint tenants live in the home.

• It gives the partners of sole tenants (non-entitled partner) the right to occupy the home for a specific period on application to the court.

• If occupancy rights have been granted, it can regulate how partners live in the home.

• It can exclude from the home the tenant, a joint tenant or the tenant's partner who has occupancy rights granted.

• It can transfer the tenancy from the tenant to the tenant's partner or from a joint to a sole tenancy.

The court most likely to be involved with the resolution of disputes is the local sheriff court or the Court of Session.

Since the implementation of the Family Law (Scotland) Act 2006 on 4 May 2006, remedies are available to both opposite and same sex couples.

The rights of sole or joint tenants to live in the home are also affected by housing legislation. These laws can determine:

• the right to occupy the home

• the transfer of tenancies in some instances

• the ability to assign the tenancy

• how tenancies are terminated

• protection against eviction.

If there are any issues in relation to abuse or harassment, there are other pieces of legislation that may also be of use, regardless of the relationship between the parties involved. For further information, please see the section on housing and domestic abuse.