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Exclusion orders for married owner occupiers

In order to exclude a spouse from the matrimonial home entirely it is first necessary to obtain an exclusion order from the court.

This content applies to Scotland

Situations in which an exclusion order will be granted

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

An exclusion order will only be granted where there has been, or there is threatened, physical or emotional abuse. The perpetrator of that abuse may be excluded from the home.

An exclusion order may be granted when: [1]

  • 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

  • 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.

Considerations the court must take into account 

In deciding whether an exclusion order is just and reasonable, the court will consider: [2]

  • 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. [3]

Obtaining an exclusion order

An action for an exclusion order should 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 as the applicant would be responsible for preparation of all her/his own paperwork and representation in court. An applicant must be represented by a solicitor or advocate in an exclusion order action. 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 him/her. S/he must be given at least 48 hours' notice of the hearing on the interim exclusion order. [4] 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 spouse knows about the hearing and has a copy of the allegations made against her/him, before the court makes a decision.

Duration of exclusion orders

Exclusion orders will only be effective while the parties are married. They cease to have effect on divorce or death. Further, if the non-applicant spouse does not occupy the matrimonial home for two years continuously after 4 May 2006 and during that time s/he does not cohabit with the entitled spouse then s/he will lose her/his right to occupy the matrimonial home altogether. [5] As a result any court orders regulating her/his occupancy rights will no longer have effect.

Otherwise exclusion orders cease to have effect only if one or both parties apply to have the order varied or recalled and such an order is granted.

Ancillary orders under the Matrimonial Homes Act 1981

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

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

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

  • a matrimonial interdict preventing the non-applicant spouse from entering any other home occupied by the applicant spouse

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

The court must, if asked, attach a power of arrest to any interdict granted ancillary to an exclusion order. [6]

Exclusion without a court order

A joint owner or a non-entitled spouse can only be lawfully excluded from a matrimonial home by an exclusion order granted by the court.

If one spouse is excluded by the other without an order of court then s/he can apply to the court for an order declaring her/his occupancy rights, and an order enforcing them. [7] For more information, please see the section on court regulation of occupancy rights.

It is worth remembering that a spouse excluded from the matrimonial home without a court order still has the right to occupy that home and can 'force' her/his way back in. If s/he intends doing this then s/he should inform the local police and if necessary have them attend to prevent a possible breach of the peace. A spouse may need to gain entry to the house simply to collect his/her belongings, but if a violent reaction is possible then it is important to have the police there.

Last updated: 29 December 2014


  • [1]

    s.4 Matrimonial Homes (Family Protection) (Scotland) Act 1981

  • [2]

    s.3(3) Matrimonial Homes (Family Protection) (Scotland) Act 1981

  • [3]

    s.4(4) Matrimonial Homes (Family Protection) (Scotland) Act 1981

  • [4]

    Rule 3.6(3) Sheriff Courts (Scotland) Act 1907, Ordinary Cause Rules 1993

  • [5]

    s.1(7) Matrimonial Homes (Family Protection) (Scotland) Act 1981 as added by s.5 Family Law (Scotland) Act 2006

  • [6]

    s.1 & s.1A Protection from Abuse (Scotland) Act 2001 as added by s.32 Family Law (Scotland) Act 2006

  • [7]

    s.1(1)(b) Matrimonial Homes (Family Protection) (Scotland) Act 1981