Consequences of leaving home

Occupancy rights in relation to the matrimonial home are granted automatically to the spouse who is not the owner or tenant (the non-entitled spouse) as a result of the marriage. [1] The tenant or owner (the entitled spouse) has the right to stay in the property by virtue of the tenancy or the right of ownership. Joint tenants or joint owners are jointly entitled, that is both owners and tenants have joint title to the property and both have occupancy rights.

The non-entitled spouse

Occupancy rights give the non-entitled spouse a right to live in the matrimonial home and, if not in occupation, the right to enter and occupy it. [2] This includes the right to occupy it with any children. [3] The non-entitled spouse can lawfully be kept out of the home only by a court order. [4]

If the entitled spouse puts the non-entitled spouse out without a court order the entitled spouse could be charged with illegal eviction as the non-entitled spouse is a residential occupier and cannot be evicted without due process of the law. The police should be contacted as they may be able to negotiate the re-entry of the non-entitled spouse or they could charge the entitled spouse with illegal eviction, which is a criminal offence.

If the non-entitled spouse is kept out of the matrimonial home and s/he cannot regain entry s/he will have to go to court for orders to declare and enforce her/his occupancy rights in order to gain entry. [5]

If the non-entitled spouse regains entry s/he may wish to consider an application to put the tenancy in her/his own name.

Expiration of occupancy rights

The non-entitled spouse will stop having the right to occupy the home if s/he ceases to co-habit with the entitled spouse and does not occupy the matrimonial home for a period of two years. [6] This will only be the case if cohabitation ceased on or after 4 May 2006 when the relevant legislation came into effect. [7] In calculating the two-year period the court will disregard any time during which either spouse was seeking any of the following: [8]

• an order declaring, enforcing, restricting, regulating or protecting the occupancy rights of either spouse

• an exclusion order suspending the occupancy rights of either spouse

• a variation or recall of any order relating to occupancy rights.

The period that is discounted begins on the date on which an application is made for an order (or the variation of an order) and ends when such an order is granted or the application is dismissed. [9]

The entitled spouse

If the tenant or owner leaves the matrimonial home s/he has a right to re-enter the matrimonial home, as s/he has a legal right to the property by virtue of the tenancy or the right of ownership to the property. If the entitled spouse is kept out s/he can force her/his way in. A court order is not needed, although it might be advisable to have the police present. 

Joint tenants/owners

If a joint tenant or owner leaves s/he has a right to return and enter the home. If s/he is being kept out s/he can force her/his way in. A court order is not needed, although it might be advisable to have the police present.

For more information, please see the pages on occupancy rights of married tenants and married owners.

A civil partner who is not the owner or tenant of the family home (the non-entitled partner) is automatically granted occupancy rights by virtue of the civil partnership. [10] The civil partner who is the tenant or owner has the right to occupy the home by virtue of the tenancy or the right of ownership.

The non-entitled partner

Occupancy rights give the non-entitled partner a right to live in the family home and, if not in occupation, the right to enter and occupy it. [11] The non-entitled partner can only be lawfully kept out of the home by court order. [12]

If the entitled partner puts out the non-entitled partner without a court order, the entitled partner could be charged with illegal eviction as the non-entitled partner is a residential occupier and cannot be evicted without due process of law. The police should be contacted as they may be able to negotiate the re-entry of the non-entitled partner or they could charge the entitled partner with illegal eviction, which is a criminal offence. [13]

If the non-entitled partner is kept out of the family home and s/he cannot regain entry, s/he will have to go to court for an order to declare and enforce her/his occupancy rights in order to gain entry. [14]

Expiration of occupancy rights

The non-entitled civil partner will stop having the right to occupy the home if s/he ceases to cohabit with the entitled partner and does not occupy the family home for a period of two years. [15] This will only be the case where the couple ceased to cohabit on or after 4 May 2006 when the relevant legislation came into effect. [16] In calculating the two-year period the court will disregard any time during which either spouse was seeking any of the following: [17]

• an order declaring, enforcing, restricting, regulating or protecting the occupancy rights of either partner

• an exclusion order suspending the occupancy rights of either partner

• a variation or recall of any order relating to occupancy rights.

The period that is discounted begins on the date on which an application is made for an order (or the variation of an order) and ends when such an order is granted or the application is dismissed. [18]

The entitled partner

If the tenant or owner leaves the family home s/he has the right to re-enter the property as s/he has the right to occupy the property by virtue of the tenancy or the right of ownership. If the entitled partner is kept out s/he can force her/his way in. A court order is not required, but it may be advisable to have the police present.

Joint tenants/owners

If a joint tenant or owner leaves, s/he has the right to return to the family home. If s/he is being kept out, s/he can force her/his way back in. It might be advisable to have the police present.

For more information on occupancy rights, please see the sections on civil partner tenants or civil partner owners.

Cohabiting couples are defined by the Matrimonial Homes (Family Protection) (Scotland) Act 1981 as a man and a woman who are living together as husband and wife. [19] The Family Law (Scotland) Act 2006 expands this definition to include same-sex partners that are living together as though they were civil partners. [20]

Non-entitled partners

For cohabitees who are not the owners or tenants (non-entitled partners) occupancy rights are not automatic; they have to apply to the courts in order to have them granted. [21] In considering whether or not cohabitation exists a court will take account of various factors, such as the length of time the partners have been living together and if there are any children of the relationship, before deciding whether to grant occupancy rights. [22] Thus a cohabitee's ability to regain entry to the home may depend on whether or not her/his partner lets her/him back in. If s/he cannot gain entry s/he will have to go to court to seek occupancy rights and also an order for enforcing those occupancy rights.

If the reason for leaving the home was the partner's behaviour then in applying for orders under the Matrimonial Homes (Family Protection) (Scotland) Act 1981 the courts will take account of the fact that the incident took place while the partners were living together and they need not still be cohabiting in order for the non-entitled partner to be able to apply to the courts for orders. [23] Non-entitled partners may wish to consider making a transfer of tenancy application, as occupancy rights granted by the courts are initially only for six months. [24]

Entitled partners

If an entitled partner leaves the home s/he has the right to return and enter the home. If need be s/he can force her/his way in, as s/he has title to the property. It might be advisable to have the police present.

Jointly entitled partners

If a jointly entitled partner leaves s/he has a right to return and enter the home as the title to the property is held jointly. If s/he is being kept out s/he can force her/his way in. A court order is not needed. It might be advisable to have the police present.

For more information about occupancy rights, please see the sections on cohabiting tenants and cohabiting owners.

In theory there is no legal advantage in remaining in the matrimonial home when it comes to a settlement on divorce. However, in reality there may be some advantage to the individual who has remained, particularly if s/he remains in the home with the children. The ages of the children and the length of time stayed there may be factors that the court will consider in deciding what happens to the matrimonial property.