Matrimonial Homes (Family Protection) (Scotland) Act 1981

Occupancy rights in relation to dealings with third parties

6 Continued exercise of occupancy rights after dealing

(1) Subject to subsection (3) below—

(a) the continued exercise of the rights conferred on a non entitled spouse by the provisions of this Act in respect of a matrimonial home shall not be prejudiced by reason only of any dealing of the entitled spouse relating to that home; and

(b) a third party shall not by reason only of such a dealing be entitled to occupy that matrimonial home or any part of it.

(2) In this section and section 7 of this Act—

• "dealing" includes the grant of a heritable security and the creation of a trust but does not include a conveyance under section 80 of the [1845 c. 19.] Lands Clauses Consolidation (Scotland) Act 1845;

• " entitled spouse " does not include a spouse who, apart from the provisions of this Act.—

  (a)

  is permitted by a third party to occupy a matrimonial home; or

  (b)

  is entitled to occupy a matrimonial home along with an individual who is not the other spouse, whether or not that individual has waived his or her right of occupation in favour of the spouse so entitled ;

  and " non-entitled spouse " shall be construed accordingly.

(3) This section shall not apply in any case where—

(a) the non-entitled spouse in writing either—

(i) consents or has consented to the dealing, and any consent shall be in such form as the Secretary of State may, by regulations made by statutory instrument, prescribe; or

(ii) renounces or has renounced his or her occupancy rights in relation to the matrimonial home or property to which the dealing relates ;

(b) the court has made an order under section 7 of this Act dispensing with the consent of the non-entitled spouse to the dealing;

(c) the dealing occurred, or implements, a binding obligation entered into by the entitled spouse before his or her marraige to the non-entitled spouse ;

(d) the dealing occurred, or implements, a binding obligation entered into before the commencement of this Act; or

(e) the dealing comprises the purchase of a matrimonial home by a third party who has acted in good faith, if, at the time of the dealing, there is produced to the third party by the entitled spouse—

(i) an affidavit sworn or affirmed by the entitled spouse declaring that there is no non-entitled spouse; or

(ii) a renunciation of occupancy rights or consent to the dealing which bears to have been properly made or given by the non-entitled spouse

(4) The [1979 c. 33.] Land Registration (Scotland) Act 1979 shall be amended as follows—

(a) in section 6(4)—

(i) after the words " the interest of " there shall be inserted " (i) "; and

(ii) after the words " is not a long lease" there shall be inserted— “and

(ii) a non-entitled spouse within the meaning of section 6 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981.”;

(b) in paragraph (b) of section 9(4)—

(i) after the words " the interest of " there shall be inserted " (i) "; and

(ii) after the words " is not a long lease " there shall be inserted— “and

(ii) a non-entitled spouse within the meaning of section 6 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981.”; and

(c) in section 28 in the definition of overriding interest after paragraph (g) there shall be inserted the following—

“(gg) the non-entitled spouse within the meaning of section 6 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 ;”.

7 Dispensation by court with spouse's consent to dealing

(1) The court may, on the application of an entitled spouse or any other person having an interest, make an order dispensing with the consent of a non-entitled spouse to a dealing which has taken place or a proposed dealing, if—

(a) such consent is unreasonably withheld ;

(b) such consent cannot be given by reason of physical or mental disability;

(c) the non-entitled spouse cannot be found after reasonable steps have been taken to trace him or her; or

(d) the non-entitled spouse is a minor.

(2) For the purposes of subsection (1)(a) above, a non-entitled spouse shall have unreasonably withheld consent to a dealing which has taken place or a proposed dealing, where it appears to the court—

(a) that the non-entitled spouse has led the entitled spouse to believe that he or she would consent to the dealing and that the non-entitled spouse would not be prejudiced by any change in the circumstances of the case since such apparent consent was given ; or

(b) that the entitled spouse has, having taken all reasonable steps to do so, been unable to obtain an answer to a request for consent.

(3) The court, in considering whether to make an order under subsection (1) above, shall have regard to all the circumstances of the case including the matters specified in paragraphs (a) to (e) of section 3(3) of this Act.

(4) Where—

(a) an application is made for an order under this section; and

(b) an action is or has been raised by a non-entitled spouse to enforce occupancy rights,

the action shall be sisted until the conclusion of the proceedings on the application.

(5) Where a wife is an entitled spouse and her husband is a non-entitled spouse, it shall not be competent for her to apply to the court under section 5 of the [1881 c. 21.] Married Women's Property (Scotland) Act 1881 for an order dispensing with her husband's consent to a dealing relating to a matrimonial home; and accordingly the said section 5 shall have effect as if at the beginning there were inserted the words " Subject to section 7(5) of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 ".

8 Interests of heritable creditor

(1) The rights of a third party with an interest in the matrimonial home as a creditor under a secured loan in relation to the non-performance of any obligation under the loan shall not be prejudiced by reason only of the occupancy rights of the non-entitled spouse; but where a non-entitled spouse has or obtains occupation of a matrimonial home and—

(a) the entitled spouse is not in occupation ; and

(b) there is a third party with such an interest in the matrimonial home,

the court may, on the application of the third party, make an order requiring the non-entitled spouse to make any payment due by the entitled spouse in respect of the loan.

(2) This section shall not apply unless the third party in granting the secured loan acted in good faith and before the granting of the loan there was produced to the third party by the entitled spouse—

(a) an affidavit sworn or affirmed by the entitled spouse declaring that there is no non-entitled spouse ; or

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

9 Provisions where both spouses have title

(1) Subject to subsection (2) below, where, apart from the provisions of this Act, both spouses are entitled to occupy a matrimonial home—

(a) the rights in that home of one spouse shall not be prejudiced by reason only of any dealing of the other spouse; and

(b) a third party shall not by reason only of such a dealing be entitled to occupy that matrimonial home or any part of it.

(2) The definition of "dealing" in section 6(2) of this Act and sections 6(3) and 7 of this Act shall apply for the purposes of subsection (1) above as they apply for the purposes of section 6(1) of this Act subject to the following modifications—

(a) any reference to the entitled spouse and to the non entitled spouse shall be construed as a reference to a spouse who has entered into or, as the case may be, proposes to enter into a dealing and to the other spouse respectively; and

(b) in paragraph (b) of section 7(4) the reference to occupancy rights shall be construed as a reference to any rights in the matrimonial home.