Administration of estate by trustee

41 Protection of rights of spouse against arrangements intended to defeat them.

(1)

If a debtor’s sequestrated estate includes a matrimonial home of which the debtor, immediately before the date F1the order is made appointing the F2. . . trustee (or, if more than one F3trustee is appointed in the sequestration, of the first F4order making such an appointment) was an entitled spouse and the other spouse is a non-entitled spouse—

(a)

the F2. . . trustee shall, where he—

(i)

is aware that the entitled spouse is married to the non-entitled spouse; and

(ii)

knows where the non-entitled spouse is residing,

inform the non-entitled spouse, within the period of 14 days beginning with that date, of the fact that sequestration of the entitled spouse’s estate has been awarded, of the right of petition which exists under section 16 of this Act and of the effect of paragraph (b) below; and

(b)

the F5sheriff , on the petition under section 16 of this Act of the non-entitled spouse presented either within the period of 40 days beginning with that date or within the period of 10 weeks beginning with the date F6of the award of sequestration may—

(i)

under section 17 of this Act recall the sequestration; or

(ii)

make such order as F7he thinks appropriate to protect the occupancy rights of the non-entitled spouse;

if F7he is satisfied that the purpose of the petition for sequestration F8or, as the case may be, the debtor application was wholly or mainly to defeat the occupancy rights of the non-entitled spouse.

(2)

In subsection (1) above—

“entitled spouse” and “non-entitled spouse” have the same meanings as in section 6 of the M1Matrimonial Homes (Family Protection) (Scotland) Act 1981;

“matrimonial home” has the meaning assigned by section 22 of that Act as amended by the M2Law Reform (Miscellaneous Provisions) (Scotland) Act 1985; and

“occupancy rights” has the meaning assigned by section 1(4) of the said Act of 1981.