Do I have the right to occupy the home I share with my partner?

Most people have never considered whether they have the "right" to occupy the home they share with their spouse or partner. In many cases, only one member of the couple may own the property.

If that couple are married, the spouse that does not own the property automatically has "occupancy rights" by virtue of the snappily-named Matrimonial Homes (Family Protection) (Scotland) Act 1981 (referred to as "the Matrimonial Homes Act" for the remainder of this article). It deals primarily with married couples and those in civil partnerships, but also makes some provision for unmarried cohabiting couples, as discussed below.

What exactly are occupancy rights for married couples?

If a property is owned jointly, or is in joint tenancy between the two parties to the marriage, then each will automatically have occupancy rights by virtue of their ownership of the property. The Matrimonial Homes Act deals with those situations where only one spouse has ownership or tenancy rights. This spouse is known in as the "entitled spouse", while the spouse with no rights in the property is called the "non-entitled spouse". Where the property in question is the "matrimonial home", the Matrimonial Homes Act grants the right to occupy the matrimonial home to the non-entitled spouse.

The non-entitled spouse has the right to "continue to occupy" the matrimonial home, or to "enter into and occupy" the matrimonial home.

What is considered a matrimonial home?

The law states that a matrimonial home means "any house, caravan, houseboat or other structure which has been provided or has been made available by one or both of the spouses as, or has become, a family residence".

The definition of matrimonial home "does not include a residence provided or made available by a person for one spouse to reside in, whether with any child of the family or not, separately from the other spouse." One example where this might be relevant is when a couple separates. If a friend or family member of one spouse provides accommodation for them to live away from the other spouse, this is not considered a matrimonial home, and therefore the other spouse does not automatically have rights to enter and occupy this property.

What if I don't own my property?

The Matrimonial Homes Act says that the entitled spouse is the spouse who is "entitled, or permitted by a third party, to occupy a matrimonial home". This means that the entitled spouse's right to occupy the matrimonial home can either be through ownership, a tenancy, or, more informally, simply being "permitted" to occupy the property by a friend or family member.

What if my spouse won't let me enter the matrimonial home?

Where the entitled spouse does not allow the non-entitled spouse to "enter into and occupy" the matrimonial home, the non-entitled spouse must apply to the court to exercise their occupancy rights. When reviewing such an application, the court will take into account certain factors, including, but not limited to:

• the conduct of the spouses in relation to each other and otherwise;
• the respective needs and financial resources of the spouses;
• the needs of any child of the family;
• the extent (if any) to which the matrimonial home and any furniture in the home is used in connection with a trade, business or profession of either spouse; and
• whether the entitled spouse offers or has offered to make available to the non-entitled spouse any suitable alternative accommodation.

If the court is satisfied that it is just and reasonable to do so, it can grant an order stating that the non-entitled spouse should be allowed entry into the home.

How do occupancy rights come to an end?

Occupancy rights will be extinguished if there has been no cohabitation between the spouses for a continuous period of two years, during which the non-entitled spouse has not been living in the matrimonial home. If occupancy rights have been extinguished in this manner, the non-entitled spouse loses their right to make the aforementioned application to the court to declare their occupancy rights.

Otherwise, either spouse can apply to the court for an exclusion order, which suspends the occupancy rights of the other spouse in a matrimonial home. The court will make an exclusion order if it is necessary for the protection of the applicant or any child of the family from any conduct of the other spouse (whether that conduct be current, threatened, or anticipated) "which is or would be injurious to the physical or mental health of the applicant or child."

Alongside the exclusion order, the court can grant a number of interdicts and warrants, including:

• a warrant for the ejection of the non-applicant spouse from the matrimonial home;
• an interdict to prevent the non-applicant spouse from entering the matrimonial home;
• an interdict preventing the non-applicant spouse from removing furniture or plenishings from the matrimonial home; and
• an interdict preventing the non-applicant spouse from entering or remaining in the vicinity of the matrimonial home (among others).

What about cohabiting couples?

Occupancy rights are not automatic for cohabiting couples. The non-entitled partner must apply to the court to be granted occupancy rights, and the court will grant the occupancy rights for only a maximum period of six months, at which point the non-entitled partner must reapply to continue these rights.

The partners must be living together in a house as if they were spouses for the application to be granted.

Cohabiting partners can also apply for an exclusion order, but to do this they must already have occupancy rights in place.

This article is only a brief overview of what is a nuanced and consequential area of law; every couple will have their own unique circumstances that need to be considered.

Should you need advice regarding any of the issues discussed, please get in touch with one of our family law experts.