104Exclusion ordersS
(1)Where there is an entitled and non-entitled partner, or where both partners are entitled, or permitted by a third party, to occupy a family home, either partner, whether or not that partner is in occupation at the time of the application, may apply to the court for an order (in this Chapter referred to as “an exclusion order”) suspending the occupancy rights of the other partner (“the non-applicant partner”) in a family home.
(2)Subject to subsection (3), the court is to make an exclusion order if it appears to it that to do so is necessary for the protection of the applicant or any child of the family from any conduct, or threatened or reasonably apprehended conduct, of the non-applicant partner which is or would be injurious to the physical or mental health of the applicant or child.
(3)The court is not to make an exclusion order if it appears to it that to do so would be unjustified or unreasonable—
(a)having regard to all the circumstances of the case including the matters specified in paragraphs (a) to (e) of section 103(3), and
(b)where the family home—
(i)is, or is part of, an agricultural holding within the meaning of section 1 of the Agricultural Holdings (Scotland) Act 1991 (c. 55), or
(ii)is let, or is a home in respect of which possession is given, to the non-applicant partner or to both partners by an employer as an incident of employment,
having regard to any requirement that the non-applicant partner, or, as the case may be, both partners must reside in the family home and to the likely consequences of the exclusion of the non-applicant partner from the family home.
(4)In making an exclusion order the court is, on the application of the applicant partner—
(a)to grant a warrant for the summary ejection of the non-applicant partner from the family home unless the non-applicant partner satisfies the court that it is unnecessary for it to grant such a remedy,
(b)to grant an interdict prohibiting the non-applicant partner from entering the family home without the express permission of the applicant, and
(c)to grant an interdict prohibiting the removal by the non-applicant partner, except with the written consent of the applicant or by a further order of the court, of any furniture and plenishings in the family home unless the non-applicant partner satisfies the court that it is unnecessary for it to grant such a remedy.
(5)In making an exclusion order the court may—
(a)grant an interdict prohibiting the non-applicant partner from entering or remaining in a specified area in the vicinity of the family home;
(b)where the warrant for the summary ejection of the non-applicant partner has been granted in that partner’s absence, give directions as to the preservation of that partner’s goods and effects which remain in the family home;
(c)on the application of either partner, make the exclusion order or the warrant or interdict mentioned in paragraph (a), (b) or (c) of subsection (4) or paragraph (a) of this subsection subject to such terms and conditions as the court may prescribe;
(d)on the application of either partner, make such other order as it considers necessary for the proper enforcement of an order made under subsection (4) or paragraph (a), (b) or (c).
(6)Pending the making of an exclusion order, the court may, on the application of the applicant partner, make an interim order suspending the occupancy rights of the non-applicant partner in the family home to which the application for the exclusion order relates; and subsections (4) and (5) apply to such an interim order as they apply to an exclusion order.
(7)But an interim order may be made only if the non-applicant partner has been afforded an opportunity of being heard by or represented before the court.
(8)Without prejudice to subsections (1) and (6), where both partners are entitled, or permitted by a third party, to occupy a family home, it is incompetent for one partner to bring an action of ejection from the family home against the other partner.