Married tenants and rights to occupy the home
When a couple are married, each has the right to occupy the matrimonial home regardless of which of them is the tenant.
Where there is a sole tenant
When a couple are married and only one of them (the entitled spouse) is the tenant of the matrimonial home, both have the right to occupy the matrimonial home. [1] The tenant has a right to occupy that derives from having 'title' to the property through a contractual or statutory right to occupy. The tenant's wife/husband (the non-entitled spouse) has a right to occupy because s/he has occupancy rights that arise automatically on marriage and those rights will continue to exist as long as the couple remain married [2] (although they may expire if the non-entitled spouse does not occupy the matrimonial home for two or more years. For more information see expiration of occupancy rights below).
Generally, occupancy rights give the non-entitled spouse a right to live in the matrimonial home as if s/he were the tenant. In many types of tenancy it is necessary for the tenant to be resident in the property in order for the tenancy to retain its full security. The right of the non-tenant spouse to occupy the home as if s/he were the tenant avoids this loss of security. If the tenant is a Scottish secure, assured or short assured tenant s/he has to occupy 'the house as her/his only or principal home' in order to keep the tenancy. The non-entitled spouse is treated as satisfying this condition.
If the non-entitled spouse remains in the property and the tenant has not ended it, the landlord cannot terminate the tenancy on the grounds that the tenant does not live in the property. The landlord will have to use the normal procedure for eviction appropriate for the type of tenancy. If successful the non-entitled spouse would also be evicted, [3] although it is possible for the non-entitled spouse to defend an action of eviction. This is important to remember, especially in cases of relationship breakdown, when a sheriff may be more inclined to accept arguments on the grounds of reasonableness.
If s/he is not currently living in the home, s/he has the right to enter into and occupy the home: this includes the right to occupy it with any child of the family. [4] A child in this context includes a child or grandchild of either spouse or any person who has been brought up or accepted by either spouse as a child of that spouse, whatever their age. [5]
A court order is required if the tenant or her/his spouse wishes to exclude the other from the home.
Expiration of occupancy rights
If there has been no cohabitation between the spouses for a continuous period of two years [6] beginning on or after 4 May 2006 [7] and during that time the non-entitled spouse has not occupied the matrimonial home [8] then s/he will lose her/his occupancy rights. [9] In calculating the two-year period the court will disregard any time during which either spouse was seeking any of the following: [10]
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. [11]
Where there are joint tenants
When a married couple are joint tenants, both have equal rights to occupy the matrimonial home. This is because they both have title to the property through a contractual or statutory right to occupy.
A court order is required if either tenant wishes to exclude the other from the home. For more information, please see the page on exclusion orders.
If the joint tenants are in a Scottish secure, secure, assured or short assured tenancy they have to occupy 'the house as her/his only or principal home'. If only one of the joint tenants is occupying the house, the landlord cannot terminate the tenancy on that ground. The landlord can only end the tenancy if any of the grounds laid out in the relevant legislation are satisfied. Any action for eviction would have to proceed against both joint tenants with both tenants being served with the appropriate notices. One joint tenant can defend an action taken against both of them and the courts have to find against both joint tenants for the action for possession to be successful.
Transfer or assignation of the tenancy
If the tenancy of a matrimonial home is transferred or assigned from one spouse to the other by agreement or under enactment either on or after 4 May 2006 [12] and the spouse to whom the tenancy was transferred occupies the home, but the other spouse does not, the home shall cease to be a matrimonial home. [13] If this occurs the spouse no longer occupying the home will lose her/his occupancy rights. [14]
For more information, please see the page on staying in the home long term.
Last updated: 6 August 2020