Married tenants and the law on relationship breakdown

The act that has an impact on the resolution of disputes between spouses is the Matrimonial Homes (Family Protection) (Scotland) Act 1981 (referred to as the Matrimonial Homes Act).

This Act covers all tenants regardless of their type of tenancy: Scottish secure, secure, assured, regulated and common law. The Act:

• gives the spouses of sole tenants the right to occupy the matrimonial home on marriage

• regulates how spouses live in the matrimonial home

• requires the sole tenant to obtain the consent of her/his spouse to certain transactions which affect occupancy rights

• can exclude from the matrimonial home the tenant or the tenant's spouse, even if s/he is a joint tenant

• can transfer the tenancy from the tenant to the tenant's spouse or from a joint to a sole tenancy.

The courts most likely to be involved with the resolution of disputes are the local sheriff court and the Court of Session.

The rights of sole or joint tenants to live in the matrimonial home are also determined by housing legislation. These laws can determine:

• the right to occupy the home

• the transfer of tenancies in some instances

• the ability to assign the tenancy

• how tenancies are terminated and give protection against eviction.

If there are any issues in relation to abuse or harassment, there are other pieces of legislation that may also be of use, regardless of the relationship between the parties involved. For further information, please see the section on housing and domestic abuse.