Matrimonial homes legislation

Orders under the Act are available only to married couples and in some circumstances opposite-sex and same-sex [1] cohabitees. [2] Similar rights are granted to civil partners under the Civil Partnership Act 2004.

Entitlement to protection under the Act depends on the existence of occupancy rights.

Occupancy rights are rights conferred on the spouse who is not the (joint) owner or (joint) tenant (the non-entitled spouse), to give her/him the right to occupy the matrimonial home. Therefore, if a tenancy or the title to the home is in the name of the husband, the wife automatically has a legal right to occupy the matrimonial home. [3] The mortgage can be in the name of one spouse while the title is in joint names. It is the title that determines ownership.

The non-entitled spouse will stop having the right to occupy the home if s/he ceases to cohabit with the entitled spouse and does not occupy the matrimonial home for a period of two years. [4] This will only be the case if cohabitation ceased on or after 4 May 2006 when relevant legislation came into effect. [5]

A cohabitee who is not the tenant or owner does not have occupancy rights automatically. A cohabitee must apply to the court to have occupancy rights granted to her/him. The grant of occupancy rights is within the court's discretion but it will have regard to the length of time the couple has been cohabiting and whether there are any children of the relationship. When the rights are granted they are temporary. Occupancy rights can only be granted for six months. They can be renewed at the end of the six-month period for further periods of time. Each renewal cannot be longer than six months. A cohabitee has access to the protection of the Act, for exclusion orders, matrimonial interdicts and powers of arrest for the duration of a grant of occupancy rights. [6]

An application for occupancy rights can be made even where the couple is not presently cohabiting, if the partners were living together at the time of the incident which gives rise to the need for protection. [7]

A cohabitee who is the owner or tenant of the home, living with a violent partner who does not have occupancy rights, cannot rely on the protection offered by the Act. Such a cohabitee will have to apply to the court for ejection of her/his partner. S/he will be able to apply for an interdict but will not be entitled to powers of arrest. [8] So a cohabitee who is the sole tenant or owner does not have access to the additional protections under the Matrimonial Homes Act unless her/his partner applies to the court and obtains occupancy rights.

An exclusion order is an order of the court (sheriff court or Court of Session) that suspends a married person's or cohabitee's right to occupy the matrimonial home. It does not affect the ownership or tenancy of the home.

The action will be raised in the jurisdiction of the court in which the matrimonial home is situated. Almost all such applications are made by solicitors; the applicant can raise the action on her/his own behalf, but it is a difficult process. There are no standard forms. The applicant would be responsible for preparation of all her/his own paperwork and representation.

An applicant must be represented in court by a solicitor or advocate in an exclusion order action. Lay representation is not allowed.

An exclusion order can be granted on an interim 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 must be given at least 48 hours' notice of the hearing on the interim exclusion order. [9] Therefore the earliest court hearing on an exclusion order will be in 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 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 him/her, 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 or entering a specified area surrounding the home.

An exclusion order may be granted when: [10]

• both parties have occupancy rights

• the exclusion order relates to the matrimonial home

• there has been specific conduct by the defender or 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.

A matrimonial home is one that has been provided for the parties to live in as a family home. Therefore it will cover situations where they have not yet moved into a house. It does not extend to a house provided for one party to live separately from the other. [11]

Conduct by the defender must be something more than the unavoidable distress that will be caused when a marriage breaks down. It must be more than the mere presence of the defender that causes distress, but her/his personal behaviour towards the applicant. [12]

A child is a child or grandchild of the family or accepted as part of the family, regardless of her/his age, so the term can apply to an adult child . [13]

In all but an action of divorce with an ancillary request for an exclusion order, the conduct does not need to be corroborated. [14]

The court must be satisfied that the conduct is likely to be repeated if cohabitation continues or resumes. [15] It may not be sufficient to rely on an isolated incident that was out of character. [16]

There must be a causal link between the conduct and the applicant's risk of deteriorating physical or mental health. [17] An application to the court will generally be stronger if supported by a medical report, especially when relying on injury to mental health.

The decision on whether to grant an interim exclusion order is whether it is necessary. It is not appropriate to consider the balance of convenience. The court is entitled to consider whether an interdict with powers of arrest would be sufficient to protect the applicant. [18]

In deciding whether an interim exclusion order is just and reasonable, the court will consider: [19]

• the conduct of the parties to each other and generally

• 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 her/his business, trade or profession

• where one spouse is entitled, if the entitled spouse has offered to make alternative suitable accommodation available

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

If an exclusion order is granted the court must also grant, if requested, an interdict preventing the excluded person from re-entering the home. [20]

Exclusion orders will only be effective while the parties are married or while a cohabitee has been granted occupancy rights.

If the court is asked to attach a power of arrest to an exclusion order then it must do so. It must also attach a power of arrest to an interdict granted ancillary to an exclusion order if asked to do so. [21]

Matrimonial interdicts [22] are available to either a husband or wife or a cohabitee, [23] where both cohabitees have occupancy rights.

A matrimonial interdict is an interdict that restrains or prohibits any conduct of one spouse/cohabitee towards the other spouse/cohabitee or a child of the family, or prohibits a spouse/cohabitee from entering or being in the vicinity of the matrimonial home, once s/he has been excluded. [24]

Matrimonial interdicts granted on or after 4 May 2006 can also be used to prevent the non-applicant spouse or cohabitant from entering or remaining in: [25]

• the matrimonial home

• any residence, other than the matrimonial home, occupied by the applicant spouse or cohabitee

• any place of work of the applicant spouse or cohabitee

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

Interdicts can only be used to exclude the non-applicant spouse or cohabitant from the home entirely when they are granted ancillary to an exclusion order. [26] For more information, please see the section above on exclusion orders.

A matrimonial interdict can have powers of arrest attached. A power of arrest increases the effectiveness of an interdict as it gives the police power to intervene and remove the perpetrator from the scene until the next court day and then possibly for a further 48 hours.

A power of arrest is a device added to a matrimonial interdict and those experiencing domestic abuse can use it as a preventative measure.

Powers of arrest exist only as long as the occupancy rights do. In the case of cohabitees, a power of arrest will cease to exist when the period of time for the grant of occupancy rights ends. In the case of married persons a power of arrest will come to an end when the divorce is granted.

A power of arrest must be attached to a specified matrimonial interdict. In some cases it may also be attached to other matrimonial interdicts. On application they must be attached to any exclusion order or interdict that is granted ancillary to the exclusion order. [27]

Specified matrimonial interdicts are ones granted at the same time as an exclusion order, which either prohibits the excluded person from re-entering the home or prohibits that person from being in the vicinity of the home. [28]

A power of arrest may be attached to any other matrimonial interdict, where the person to whom the interdict is aimed has had notice of the application and where the power of arrest is judged as necessary. [29]

The power of arrest will become effective when the person they are concerning has been notified and when the Chief Constable [30]grants permission. The police have the power to arrest, without warrant, a person whom they have reasonable suspicion have breached an interdict.In practice the police have power to arrest on receipt of a complaint from the applicant. [31]

Once the perpetrator has been arrested the police have power to detain [32] her/him until the next court day. The procurator fiscal may decide to proceed with a criminal prosecution if a crime has been committed or arrange for her/him to appear at the next court date. If there is not to be a criminal prosecution then the holder of the interdict has to decide whether to enforce it by raising breach of interdict proceedings. If s/he does go ahead with such proceedings the court may order the detention of the perpetrator for a further period of 48 hours.

Limitations of powers of arrest

A power of arrest that is attached to a matrimonial interdict is only available to married people and to some cohabitees. They are also only applicable for a restricted period of time.

The police can use a power of arrest to arrest and remove a perpetrator from the scene of the breech. However, unless the procurator fiscal decides to prosecute for a criminal offence, the onus is still on the applicant to enforce the interdict.

For more information, please see also the page on interdicts.