(1)[F1Subject to subsections (1A) and (1C),] The court may, on the application of an entitled partner or any other person having an interest, make an order dispensing with the consent of a non-entitled partner 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, or
(c)the non-entitled partner cannot be found after reasonable steps have been taken to trace that partner.
[F2(1A)Subsection (1B) applies if, in relation to a proposed sale—
(a)negotiations with a third party have not begun, or
(b)negotiations have begun but a price has not been agreed.
(1B)An order under subsection (1) dispensing with consent may be made only if—
(a)the price agreed for the sale is no less than such amount as the court specifies in the order, and
(b)the contract for the sale is concluded before the expiry of such period as may be so specified.
(1C)Subsection (1D) applies if the proposed dealing is the grant of a heritable security.
(1D)An order under subsection (1) dispensing with consent may be made only if—
(a)the heritable security is granted for a loan of no more than such amount as the court specifies in the order, and
(b)the security is executed before the expiry of such period as may be so specified.]
(2)For the purposes of subsection (1)(a), a non-entitled partner has unreasonably withheld consent to a dealing which has taken place or a proposed dealing, where it appears to the court either—
(a)that the non-entitled partner—
(i)has led the entitled partner to believe that the non-entitled partner would consent to the dealing, and
(ii)would not be prejudiced by any change in the circumstances of the case since the conduct which gave rise to that belief occurred, or
(b)that the entitled partner 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), is to have regard to all the circumstances of the case including the matters specified in paragraphs (a) to (e) of section 103(3).
[F3(3A)If the court refuses an application for an order under subsection (1), it may make an order requiring a non-entitled partner who is or becomes the occupier of the family home—
(a)to make such payments to the owner of the home in respect of that partner's occupation of it as may be specified in the order,
(b)to comply with such other conditions relating to that partner's occupation of the family home as may be so specified.]
(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 partner to enforce occupancy rights,
the action is to be sisted until the conclusion of the proceedings on the application.
Textual Amendments
F1Words in s. 107(1) inserted (4.5.2006) by Family Law (Scotland) Act 2006 (asp 2), ss. 33, 46(2), Sch. 1 para. 6(a); S.S.I. 2006/212, art. 2 (subject to arts. 3-13)
F2S. 107(1A)-(1D) inserted (4.5.2006) by Family Law (Scotland) Act 2006 (asp 2), ss. 33, 46(2), Sch. 1 para. 6(b); S.S.I. 2006/212, art. 2 (subject to arts. 3-13)
F3S. 107(3A) inserted (4.5.2006) by Family Law (Scotland) Act 2006 (asp 2), ss. 33, 46(2), Sch. 1 para. 6(c); S.S.I. 2006/212, art. 2 (subject to arts. 3-13)