Civil Partnership Act 2004 (c. 33)

Part 3 S Civil partnership: Scotland

Chapter 3 S Occupancy rights and tenancies

Modifications etc. (not altering text)

C1 Pt. 3 Ch. 3 excluded by 2002 c. 29, s. 269A(5) (as inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), ss. 29(5), 58(1)(6); S.I. 2018/78, reg. 3(l))

Occupancy rights S

106 Continued exercise of occupancy rights after dealing S

(1) Subject to subsection (3)—

(a) the continued exercise of the rights conferred on a non-entitled partner by the provisions of this Chapter in respect of a family home are not prejudiced by reason only of any dealing of the entitled partner relating to that home, and

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

[F1 (1A) The occupancy rights of a non-entitled partner in relation to a family home shall not be exercisable in relation to the home where, following a dealing of the entitled partner relating to the home—

(a) a person acquires the home, or an interest in it, in good faith and for value from a person other than the person who is or, as the case may be, was the entitled partner, or

(b) a person derives title to the home from a person who acquired title as mentioned in paragraph (a).]

(2) In this section and section 107—

• “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 Lands Clauses Consolidation Act 1845 (c. 18);

• “entitled partner” does not include a civil partner who, apart from the provisions of this Chapter—

  (a)

  is permitted by a third party to occupy a family home, or

  (b)

  is entitled to occupy a family home along with an individual who is not the other civil partner whether or not that individual has waived a right of occupation in favour of the civil partner so entitled,

  (“non-entitled partner” being construed accordingly).

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

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

(i) consents or has consented to the dealing (any consent being in such form as the Scottish Ministers may, by regulations made by statutory instrument, prescribe), or

(ii) renounces or has renounced occupancy rights in relation to the family home or property to which the dealing relates,

(b) the court has made an order under section 107 dispensing with the consent of the non-entitled partner to the dealing,

(c) the dealing occurred, or implements a binding obligation entered into by the entitled partner, before the registration of the civil partnership,

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

(e) the dealing comprises a [F2 transfer for value] to a third party who has acted in good faith, if there is produced to the third party by the [F3 transferor—

(i) a written declaration signed by the transferor, or a person acting on behalf of the transferor under a power of attorney or as a guardian (within the meaning of the Adults with Incapacity (Scotland) Act 2000 (asp 4)), that the subjects of the transfer are not, or were not at the time of the dealing, a family home in relation to which a civil partner of the transferor has or had occupancy rights, 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 partner or a person acting on behalf of the non-entitled partner under a power of attorney or as a guardian (within the meaning of the Adults with Incapacity (Scotland) Act 2000 (asp 4)).]

(f) the entitled partner has permanently ceased to be entitled to occupy the family home, and at any time after that a continuous period of [F4 2] years has elapsed during which the non-entitled partner has not occupied the family home.

(4) For the purposes of subsection (3)(e), 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.

Textual Amendments

F1 S. 106(1A) inserted (4.5.2006) by Family Law (Scotland) Act 2006 (asp 2), ss. 33, 46(2), Sch. 1 para. 5(a); S.S.I. 2006/212, art. 2 (subject to arts. 3-13)

F2 Words in s. 106(3)(e) substituted (4.5.2006) by Family Law (Scotland) Act 2006 (asp 2), ss. 33, 46(2), Sch. 1 para. 5(b)(i); S.S.I. 2006/212, art. 2 (subject to arts. 3-13)

F3 Words in s. 106(3)(e) substituted (4.5.2006) by Family Law (Scotland) Act 2006 (asp 2), ss. 33, 46(2), Sch. 1 para. 5(b)(ii); S.S.I. 2006/212, art. 2 (subject to arts. 3-13)

F4 Word in s. 106(3)(f) substituted (4.5.2006) by Family Law (Scotland) Act 2006 (asp 2), ss. 33, 46(2), Sch. 1 para. 5(b)(iii); S.S.I. 2006/212, art. 2 (subject to arts. 3-13)