Occupancy rights for cohabiting couples

An occupancy right in Scotland is the legal right of an individual to enter, occupy and use a house or flat (heritable property) regardless of ownership or tenancy. Occupancy rights are acquired automatically by a spouse or civil partner who is married to, or in a civil partnership with, the tenant or owner of a property. Those who are in cohabiting relationships do not have automatic occupancy rights to the home in which they live unless they own it or are named as a tenant on the lease. Often, people are surprised to learn that they do not have an automatic right to occupy the property in which they live if they are in a cohabiting relationship and are not named on the lease or title to the property.

Matrimonial Homes (Family Protection) (Scotland) Act 1981

Before the introduction of Matrimonial Homes (Family Protection) (Scotland) Act 1981 ('the 1981 Act') spouses in Scotland who were not on the title to the property they lived in with their spouse, did not automatically acquire occupancy rights in the home. This meant that the 'non-entitled' spouse was left vulnerable to ejection at the mercy of the 'entitled spouse' and the law provided no remedy to victims of domestic violence to eject their spouse from the home if the abuser was the sole owner or tenant, nor could they acquire the right to occupy the said property.

The 1981 Act remedied this deficiency, granting an automatic right on spouses (and since 2006 civil partners) to occupy the matrimonial home. This absolute right gives spouses and civil partners valuable protection against ejection. The legislation also provides a mechanism whereby abusive spouses and civil partners can be excluded from a property which they own or of which they are tenant, by order of the court, known as an 'exclusion order'.

Cohabitants and occupancy rights

The current legal framework in Scotland does not provide cohabitants with automatic occupancy rights. This means that cohabitants can be vulnerable to ejection in the event of relationship breakdown if the person who owns or rents the property withdraws their consent to occupy the property. There are, however, remedies available through a court to cohabitants who find themselves vulnerable to eviction.

How to secure occupancy rights as a cohabitant

Cohabitants do not have automatic occupancy rights simply as a consequence of the cohabiting relationship, but rather must apply to the court to obtain occupancy rights. Under section 18(1) of the 1981 Act, broadly speaking, there are certain circumstances when an individual can apply to the court to obtain occupancy rights these are:

1. To provide a cohabitant with the right to live in a property they have been sharing with their partner if that partner does not wish them to continue living in the property; or
2. In conjunction with an exclusion order to prevent their partner temporarily occupying the property if their safety is at risk (a court will only grant an exclusion order to cohabitants who have occupancy rights). This means if the cohabitant is the 'non-entitled partner' they will require to apply to the court to obtain occupancy rights and obtain these before an exclusion order will be granted. In practice, this is a difficult and time-consuming exercise, and it as has been established and supported in recent case law, that it is not competent for the court to make an interim order for occupancy rights.

Interim occupancy rights and recent caselaw

The case law since the 1990 case Byars v McDonald GWD 28-1610 has been that an order for interim occupancy rights is not competent. This position was tested in 2024 at the Sheriff Appeal Court in the case of McBride v McInnes [2024] SAC (Civ) 42. The appellant in this case appealed the decision of the Sheriff at first instance who determined that the female partner (the non-entitled partner), could competently establish occupancy rights in the male partner’s property (the entitled partner) following proof. In order to protect her position in the meantime, the Sheriff at first instance granted the female partner occupancy rights on an interim basis. On appeal the Sheriff Appeal Court determined that the Sheriff had erred and previous case law (the 1990 case of Byars) was binding and the interim order for occupancy rights was not competent. In McBride, the Sheriff Appeal Court also considered the position of how long, following the breakdown of a cohabitation, an application could be made to the court to obtain occupancy rights. It became clear that the court will take into consideration the length of time the parties have been separated before making an order for occupancy rights.

To avoid any uncertainty in living arrangements, cohabiting couples should consider entering a cohabitation agreement to provide certainty and protection in regulating potential future relationship breakdowns. For more information, please get in touch with our family lawyers.