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Married owner occupiers and staying in the home long term

The parties will usually want to resolve occupation of the matrimonial home once it is clear that the marriage has definitely ended. There are a number of long-term solutions that may or may not involve application to the court.

This content applies to Scotland

Solutions not involving the courts

It may be possible for the spouses to come to an agreement about the future of the home without involving the courts (this is sometimes called a separation agreement or minute of agreement).

Where there is a sole owner, the parties can agree to sell the home on the open market with the proceeds divided between them in accordance with legislation. [1]

Where there are joint owners, both could agree to seel the home on the open market and split the proceeds. The proceeds would be split equally unless there is a written agreement to the contrary or the title deeds disclose that ownership is not split 50/50. Joint owners may agree that one will buy the other's share in the property and be registered as the sole owner. Any joint mortgage would have to be transferred to the sole owner otherwise the other party would continue to be jointly and severally liable for all of the mortgage payments. The lender must consent to the transfer of the mortgage. To obtain sole ownership, one owner may have to pay the other for her/his share. It may be possible to obtain a further advance on the mortgage to do this but the lender would have to be satisfied that the additional expenditure could be met.

Solutions involving the courts

The courts can become involved at the request of one of the couple in a divorce action.

The court will have power to deal with occupation of the matrimonial home, but the court's power to grant a capital sum is dependent on the extent of the matrimonial property. A matrimonial home is not necessarily matrimonial property. [2] A solely owned matrimonial home will only be matrimonial property if it was purchased in contemplation of marriage or during the marriage and was used by the couple together. A property bought before the marriage by one party to live in independently will not be matrimonial property although it will become a matrimonial home if the parties live there after the marriage. [3] If it is not matrimonial property then the non-entitled spouse is not entitled to a share of the value of the home, although account will be taken of her/his economic contributions to the marriage. [4]

All items that were matrimonial property on the date that co-habitation ceased or the date of service of summons in a divorce action (whichever is sooner) will continue to be matrimonial property. [5] This means that if an entitled spouse sells a home that is matrimonial property after the non-entitled spouse moves out, the proceeds of the sale will be matrimonial property. All matrimonial property should be shared fairly between the parties to a marriage. [6]

Where the home is owned jointly, any proceeds from its sale should be split according to the proportions detailed in the title deeds, unless there is an agreement to do otherwise. If one of the parties has paid more than her/his share of joint and several obligations, for example a roof repair, s/he may receive a larger share of the proceeds than provided for in the title deeds.

The simplified 'do it yourself' divorce procedure cannotbe used to determine the question of property division. Therefore a solicitor experienced in family law should be consulted.

An action for judicial separation does not allow the court to interfere in the property arrangements for the matrimonial home.

Last updated: 6 August 2020


  • [1]

    Family Law (Scotland) Act 1985

  • [2]

    See definition of matrimonial home in s.22 Matrimonial Homes (Family Protection) (Scotland) Act 1981 and definition of matrimonial property in s.10(4) Family Law (Scotland) Act 1985

  • [3]

    s.10(4) Family Law (Scotland) Act 1985

  • [4]

    s.9(1)(a) Family Law (Scotland) Act 1985

  • [5]

    s.10(3) Family Law (Scotland) Act 1985

  • [6]

    s.9(1)(a) Family Law (Scotland) Act 1985