Transactions relating to the home

Under the Matrimonial Homes (Family Protection) Scotland Act 1981, a spouse is prevented from entering into a transaction without the other's spouse's consent [1] that would impact on the other spouse's occupancy rights.

If a sole owner or joint owner wants to enter into a transaction that would impact on the other spouse's occupancy rights, the owner or joint owner must get written consent from the other spouse first. [2] A transaction could be selling the matrimonial home, taking out a mortgage on the family home, or letting the property or taking a lodger.

If the homeowner enters into a transaction with a third party without the other spouse's consent, for example by letting out the home or taking in a lodger, that third party cannot legally move into the property. [3] This is because the non-entitled spouse will still be entitled to exercise her/his occupancy rights over the matrimonial home. [4] There are, however, certain situations in which a non-entitled spouse could lose her/his occupancy rights after a transaction. For more information, please see the section on sale and disposal of the property.

Where the non-entitled spouse or other joint owner will not give written consent to a transaction, the sole owner or joint owner or any other person with an interest can apply to the court for an order to have the requirement for the other spouse's written consent dispensed with. [5] The court can make an order dispensing with consent if any of the following criteria are satisfied: [6]

• The consent cannot be given by reason of physical or mental disability.

• The spouse cannot be found despite reasonable steps taken to trace her/him.

• The spouse is below an age at which s/he is legally entitled to give consent.

• The spouse's consent is being un-reasonably withheld.

The court will find that consent has been unreasonably withheld if: [7]

• the non-entitled spouse would not be affected by the dealing and has led the entitled spouse to believe that s/he would consent to it or

• the entitled spouse has, despite taking all reasonable steps, been unable to obtain an answer either way from the non-entitled spouse.

In deciding whether to dispense with consent the court will consider all the circumstances of the case including the needs of any children, the behaviour of the spouses and whether either spouse needs the matrimonial property to continue with work/business.

An order to dispense with the written consent of the non-entitled spouse may be granted subject to conditions relating to the sale of the matrimonial home attached. For example, where a price has not yet been agreed between the entitled spouse and a potential purchaser the court may specify a minimum price for the sale. [8] The court may also issue an order specifying that the contract of sale be concluded before a particular date. [9]

If the court refuses to grant an order dispensing with the permission of the non-entitled spouse it can issue an order obliging her/him to make payments to the entitled spouse in return for her/his occupation of the matrimonial property. [10] Such an order may also specify that the non-entitled spouse must comply with other conditions relating to her/his occupation of the matrimonial home. [11]

In the event that the non-entitled spouse or a joint home owner applies for an order enforcing her/his occupancy rights at the same time as the entitled spouse or other joint owner applies for an order allowing her/him to enter into a transaction without the consent of her/his spouse the action regarding the occupancy rights must be decided first. [12]