106Continued exercise of occupancy rights after dealing
(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.
(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 sale to a third party who has acted in good faith, if there is produced to the third party by the seller—
(i)an affidavit sworn or affirmed by the seller declaring that the subjects of sale are not, or were not at the time of the dealing, a family home in relation to which a civil partner of the seller has or had occupancy rights,
(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
(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 5 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.