45662
MATRIMONAIL HOMES (FAMILY PROTECTION) SCOTLAND ACT 1981
- amended by Law Reform Miscellaneous Provisions (Scotland) Act 1985
- came into force September 1992
- creates occupancy rights for the benefit of non-entitled spouses
- creates occupancy rights for the benefit of non-entitled spouses
- came into force September 1992
- s101 Civil Partnership Act 2004
- and Famil Law (Scotland) Act 2006
- main thrust - to create occupancy right of spuse/civil partner
- even if the inital spouse withdraws consent
- even if the inital spouse withdraws consent
- depends on how title is taken
- if both have title, both are entitled
- if only one takes title
- even where consent has been withdrawn
- the non entitle spouse is entitled to occupy
- it is an enforceable right
- Stevenson v Roy - dicusses non entitled rights to occupy
- also be protected against the transfer of heritable property
- s6(3)(f) 1981 Act - loss of rights due to lapse of time and relevance of unsuccessful attempt to reoccupy
- s6(3)(f) 1981 Act - loss of rights due to lapse of time and relevance of unsuccessful attempt to reoccupy
- also be protected against the transfer of heritable property
- it is an enforceable right
- Steele v Caldwell
- the non entitle spouse is entitled to occupy
- even where consent has been withdrawn
- if both have title, both are entitled
- s18, 1981 Act - primary condition to establish that cohabitation existed at date when court considered the case
- Verity v Fenner
- s18(3) applies to cohabiting couples
- contrast with Armour v Anderson
- by the time the action was raised ceased to cohabit
- sheriff principal said outwith provision of 1981 Act
- decision reversed on appeal, as cohabiting when relevent events occured
- application was competent
- application was competent
- decision reversed on appeal, as cohabiting when relevent events occured
- sheriff principal said outwith provision of 1981 Act
- by the time the action was raised ceased to cohabit
- contrast with Armour v Anderson
- Verity v Fenner
- s4(1) exclusion orders
- can extend to cohabitees
- similar rights in favour of family of bankrupt
- Bankruptcy (Scotland) Act 1985 s40
- Bankruptcy (Scotland) Act 1985 s40
- can extend to cohabitees
- s22 - Matrimonial Home - definition
- house, caravan, house boat or other structure
- includes any garden, or ground, or building attached
- usually occupied with required for amenity & convenience of the relevant residence
- but does not include recidence provided or made available by one spouse for that spouse to reside in
- whether with any child of the family or not, separately from the other spouse
- whether with any child of the family or not, separately from the other spouse
- but does not include recidence provided or made available by one spouse for that spouse to reside in
- usually occupied with required for amenity & convenience of the relevant residence
- includes any garden, or ground, or building attached
- provided or made available by one or both spouses, as a family residence
- house, caravan, house boat or other structure
- in disposition you could have consensus to that dealing
- non entitled spouse would consent to the sale
- clause renouncing 1981 act
- general renouncement by affidavit
- occupancy rights persist thro' marriage
- cease on divorce
- actual divorce must take place, but could have been separated for yrs
- renounciation via separation agreement not enough for sale of property
- renounciation via separation agreement not enough for sale of property
- actual divorce must take place, but could have been separated for yrs
- court can make an order for transfer on death
- cease on divorce
- general renouncement by affidavit
- clause renouncing 1981 act
- non entitled spouse would consent to the sale
- 3 kinds of deeds
- required in every case, not just for a matrimonial home
- missives frequently get this wrong
- renounciation of occupancy rights
- no prescribed form - usually recorded in B of C&S
- consents to dealing
- there is a prescribed style
- Affidavit, that there is no entitled spouse
- no prescribed style
- no prescribed style
- there is a prescribed style
- no prescribed form - usually recorded in B of C&S
- missives frequently get this wrong
- required in every case, not just for a matrimonial home
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