The court may, on the application of a non-entitled spouse, make an order transferring the tenancy of a matrimonial home to that spouse and providing, subject to subsection (11) below, for the payment by the non-entitled spouse to the entitled spouse of such compensation as seems just and reasonable in all the circumstances of the case.

In determining whether to grant an application under subsection (1) above, the court 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 and the suitability of the applicant to become the tenant and the applicant’s capacity to perform the obligations under the lease of the matrimonial home.

The non-entitled spouse shall serve a copy of an application under subsection (1) above on the landlord and, before making an order under subsection (1) above, the court shall give the landlord an opportunity of being heard by it.

On the making of an order granting an application under subsection (1) above, the tenancy shall vest in the non-entitled spouse without intimation to the landlord, subject to all the liabilities under the lease (other than any arrears of rent for the period before the making of the order, which shall remain the liability of the original entitled spouse).

The clerk of court shall notify the landlord of the making of an order granting an application under subsection (1) above.

In subsection (6) above—

• F5“agricultural lease” means a lease constituting a 1991 Act tenancy within the meaning of the Agricultural Holdings (Scotland) Act 2003 (asp 11) or a lease constituting a limited duration tenancy or a short limited duration tenancy (within the meaning of that Act);

• “cottar” has the same meaning as in section 28(4) of the M1Crofters (Scotland) Act 1955;

• “croft” has the same meaning as in the Crofters (Scotland) Act 1955;

• “holding”, in relation to a landholder and a statutory small tenant, “landholder” and “statutory small tenant” have the same meanings respectively as in sections 2(1), 2(2) and 32(1) of the M2Small Landholders (Scotland) Act 1911;

• “long lease” has the same meaning as in section 28(1) of the M3Land Registration (Scotland) Act 1979;

• “tenant-at-will” has the same meaning as in section 20(8) of the Land Registration (Scotland) Act 1979.

Where both spouses are joint or common tenants of a matrimonial home, the court may, on the application of one of the spouses, make an order vesting the tenancy in that spouse solely and providing, subject to subsection (11) below, for the payment by the applicant to the other spouse of such compensation as seems just and reasonable in the circumstances of the case.

Where the matrimonial home is a F2Scottish secure tenancy within the meaning of the Housing (Scotland) Act 2001 (asp 10), no account shall be taken, in assessing the amount of any compensation to be awarded under subsection (1) or (9) above, of the loss, by virtue of the transfer of the tenancy of the home, of a right to purchase the home under F2Part III of the Housing (Scotland) Act 1987 (c. 26)..