Law Reform (Miscellaneous Provisions) (Scotland) Act 1985

13 Amendments of Matrimonial Homes (Family Protection) (Scotland) Act 1981. S

(1) The M1 Matrimonial Homes (Family Protection) (Scotland) Act 1981 shall be amended in accordance with the following provisions of this section.

(2) In section 1(1)(a) of that Act (right of occupying spouse not to be excluded from matrimonial home), for the words from “not” to the end there shall be substituted the words “ to continue to occupy the matrimonial home; ”.

(3) After section 1 of that Act there shall be inserted the following subsection—

“(1A) The rights conferred by subsection (1) above to continue to occupy or, as the case may be, to enter and occupy the matrimonial home include, without prejudice to their generality, the right to do so together with any child of the family.”.

(4) In section 1(6) of that Act (renunciation of occupancy rights to be sworn or affirmed before notary public) at the end there shall be added the following—

“In this subsection, “notary public” includes any person duly authorised by the law of the country (other than Scotland) in which the swearing or affirmation takes place to administer oaths or receive affirmation in that other country.”.

(5) In section 4(1) of that Act after the words “either spouse” there shall be inserted the words “ whether or not that spouse is in occupation at the time of the application. ”.

(6) In section 6 of that Act (continued exercise of occupancy rights after dealings with the matrimonial home)—

(a) the word “or” occurring immediately after subsection (3)(d) shall be omitted;

(b) in subsection (3)(e)—

(i) for the words “the purchase of a matrimonial home by” there shall be substituted the words “ a sale to ”;

(ii) after the word “at” there shall be inserted the words “ or before ”;

(iii) for the words from “entitled spouse”, where first occurring, to the word “spouse”, where thirdly occurring, there shall be substituted the words—

“seller—

(i) an affidavit sworn or affirmed by the seller declaring that the subjects of sale are not a matrimonial home in relation to which a spouse of the seller has occupancy rights;”and

(iv) at the end there shall be added the words—

“For the purposes of this paragraph, the time of the dealing, in the case of the sale of an interest in heritable property, is the date of delivery to the purchaser of the deed transferring title to that interest.”;

(c) after subsection (3)(e) there shall be added—

“; or

(f) the entitled spouse has permanently ceased to be entitled to occupy the matrimonial home, and at any time thereafter a continuous period of 5 years has elapsed during which the non-entitled spouse has not occupied the matrimonial home.”.

(7) In section 8(2) of that Act (protection of interests of heritable creditors) after the word “apply” there shall be inserted the words “ to secured loans in respect of which the security was granted prior to the commencement of section 13 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 ”.

(8) After section 8(2) of that Act there shall be inserted the following subsections—

“(2A) This section shall not apply to secured loans in respect of which the security was granted after the commencement of section 13 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 unless the third party in granting the secured loan acted in good faith and at or before the granting of the security there was produced to the third party by the grantor—

(a) an affidavit sworn or affirmed by the grantor declaring that the security subjects are not a matrimonial home in relation to which a spouse of the grantor has occupancy rights; or

(b) a renunciation of occupancy rights or consent to the granting of the security which bears to have been property made or given by the non-entitled spouse.

(2B) for the purposes of subsections (2) and (2A) above, the time of granting a security, in the case of a heritable security, is the date of delivery of the deed creating the security.”.

(9) In section 18 of that Act (occupancy rights of cohabiting couples)—

(a) in subsection (1) for the word “3” there shall be inserted the word “ 6 ”; and

(b) in subsection (6), in the definition of “occupancy rights”—

(i) in paragraph (a) for the words from “not” to the end there shall be substituted the words “ to continue to occupy the house; ” and

(ii) at the end there shall be inserted the words — “ and, without prejudice to the generality of these rights, includes the right to continue to occupy or, as the case may be, to enter and occupy the house together with any child residing with the cohabiting couple ”.

(10) In section 22 of that Act in the definition of “matrimonial home” there shall be added at the end the following—

“but does not include a residence 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.”.

(11) Any—

(a) affidavit lawfully sworn or affirmed before the commencement of this section in pursuance of paragraph (e) of subsection (3) of section 6 or subsection (2) of section 8 of that Act;

(b) consent lawfully given before such commencement in pursuance of the said subsection (2),

shall have effect for the purposes of the said subsection (3) as amended by this section or, as the case may be, section 8(2A) of that Act as if it had been duly sworn, affirmed or, as the case may be, given in pursuance of the said paragraph (e) as so amended or, as the case may be, the said section 8(2A).

Marginal Citations

M1 1981 c. 59.