Civil Partnership Bill [HL]

House of Commons

Session 2002 - 03
Internet Publications
Other Bills before Parliament

Civil Partnership Bill [HL]

Civil Partnership Bill [HL]
Part 3 — Civil partnership: Scotland
Chapter 3 — Occupancy rights and tenancies
49

(a)
the conduct of the partners, whether in relation to each other or
otherwise,
(b)
the respective needs and financial resources of the partners,
(c)
the needs of any child of the family,
(d)
the extent (if any) to which—
5
(i)
the family home, and
(ii)
in relation only to an order under subsection (2), any item of
furniture and plenishings referred to in that subsection, is used
in connection with a trade, business or profession of either
partner, and
10
(e)
whether the entitled partner offers or has offered to make available to
the non-entitled partner any suitable alternative accommodation.
(4)
Pending the making of an order under subsection (3), the court, on the
application of either partner, may make such interim order as it considers
necessary or expedient in relation to—
15
(a)
the residence of either partner in the home to which the application
relates,
(b)
the personal effects of either partner or of any child of the family, or
(c)
the furniture and plenishings,

but an interim order may be made only if the non-applicant partner has been
20
afforded an opportunity of being heard by or represented before the court.
(5)
The court is not to make an order under subsection (3) or (4) if it appears that
the effect of the order would be to exclude the non-applicant partner from the
family home.
(6)
If the court makes an order under subsection (3) or (4) which requires the
25
delivery to one partner of anything which has been left in or removed from the
family home, it may also grant a warrant authorising a messenger-at-arms or
sheriff officer to enter the family home or other premises occupied by the other
partner and to search for and take possession of the thing required to be
delivered, (if need be by opening shut and lockfast places) and to deliver the
30
thing in accordance with the order.
(7)
A warrant granted under subsection (6) is to be executed only after expiry of
such period as the court is to specify in the order for delivery.
(8)
Where it appears to the court—
(a)
on the application of a non-entitled partner, that the applicant has
35
suffered a loss of occupancy rights or that the quality of the applicant’s
occupation of a family home has been impaired, or
(b)
on the application of a partner who has been given the possession or
use of furniture and plenishings by virtue of an order under subsection
(3), that the applicant has suffered a loss of such possession or use or
40
that the quality of the applicant’s possession or use of the furniture and
plenishings has been impaired,
in consequence of any act or default on the part of the other partner which was
intended to result in such loss or impairment, it may order that other partner
to pay to the applicant such compensation as it considers just and reasonable
45
in respect of that loss or impairment.
(9)
A partner may renounce in writing the right to apply under subsection (2) for
the possession or use of any item of furniture and plenishings.

Civil Partnership Bill [HL]
Part 3 — Civil partnership: Scotland
Chapter 3 — Occupancy rights and tenancies
50

102
Exclusion orders
(1)
Where there is an entitled and non-entitled partner, or where both partners are
entitled, or permitted by a third party, to occupy a family home, either partner,
whether or not that partner is in occupation at the time of the application, may
apply to the court for an order (in this Chapter referred to as “an exclusion
5
order”) suspending the occupancy rights of the other partner (“the non-
applicant partner”) in a family home.
(2)
Subject to subsection (3), the court is to make an exclusion order if it appears to
it that to do so is necessary for the protection of the applicant or any child of
the family from any conduct, or threatened or reasonably apprehended
10
conduct, of the non-applicant partner which is or would be injurious to the
physical or mental health of the applicant or child.
(3)
The court is not to make an exclusion order if it appears to it that to do so would
be unjustified or unreasonable—
(a)
having regard to all the circumstances of the case including the matters
15
specified in paragraphs (a) to (e) of section 101(3), and
(b)
where the family home—
(i)
is, or is part of, an agricultural holding within the meaning of
section 1 of the Agricultural Holdings (Scotland) Act 1991
(c. 55), or
20
(ii)
is let, or is a home in respect of which possession is given, to the
non-applicant partner or to both partners by an employer as an
incident of employment,

having regard to any requirement that the non-applicant partner, or, as
the case may be, both partners must reside in the family home and to
25
the likely consequences of the exclusion of the non-applicant partner
from the family home.
(4)
In making an exclusion order the court is, on the application of the applicant
partner—
(a)
to grant a warrant for the summary ejection of the non-applicant
30
partner from the family home unless the non-applicant partner satisfies
the court that it is unnecessary for it to grant such a remedy,
(b)
to grant an interdict prohibiting the non-applicant partner from
entering the family home without the express permission of the
applicant, and
35
(c)
to grant an interdict prohibiting the removal by the non-applicant
partner, except with the written consent of the applicant or by a further
order of the court, of any furniture and plenishings in the family home
unless the non-applicant partner satisfies the court that it is
unnecessary for it to grant such a remedy.
40
(5)
In making an exclusion order the court may—
(a)
grant an interdict prohibiting the non-applicant partner from entering
or remaining in a specified area in the vicinity of the family home;
(b)
where the warrant for the summary ejection of the non-applicant
partner has been granted in that partner’s absence, give directions as to
45
the preservation of that partner’s goods and effects which remain in the
family home;
(c)
on the application of either partner, make the exclusion order or the
warrant or interdict mentioned in paragraph (a), (b) or (c) of subsection

Civil Partnership Bill [HL]
Part 3 — Civil partnership: Scotland
Chapter 3 — Occupancy rights and tenancies
51

(4) or paragraph (a) of this subsection subject to such terms and
conditions as the court may prescribe;
(d)
on the application of either partner, make such other order as it
considers necessary for the proper enforcement of an order made under
subsection (4) or paragraph (a), (b) or (c).
5
(6)
Pending the making of an exclusion order, the court may, on the application of
the applicant partner, make an interim order suspending the occupancy rights
of the non-applicant partner in the family home to which the application for the
exclusion order relates; and subsections (4) and (5) apply to such an interim
order as they apply to an exclusion order.
10
(7)
But an interim order may be made only if the non-applicant partner has been
afforded an opportunity of being heard by or represented before the court.
(8)
Without prejudice to subsections (1) and (6), where both partners are entitled,
or permitted by a third party, to occupy a family home, it is incompetent for
one partner to bring an action of ejection from the family home against the
15
other partner.
103
Duration of orders under sections 101 and 102
(1)
The court may, on the application of either partner, vary or recall any order
made by it under section 101 or 102.
(2)
Subject to subsection (3), any such order, unless previously so varied or
20
recalled, ceases to have effect—
(a)
on the dissolution of the civil partnership,
(b)
subject to section 104(1), where there is an entitled and non-entitled
partner, on the entitled partner ceasing to be an entitled partner in
respect of the family home to which the order relates, or
25
(c)
where both partners are entitled, or permitted by a third party, to
occupy the family home, on both partners ceasing to be so entitled or
permitted.
(3)
Without prejudice to the generality of subsection (2), an order under section
101(3) or (4) which grants the possession or use of furniture and plenishings
30
ceases to have effect if the furniture and plenishings cease to be permitted by a
third party to be retained in the family home.
104
Continued exercise of occupancy rights after dealing
(1)
Subject to subsection (3)—
(a)
the continued exercise of the rights conferred on a non-entitled partner
35
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.
40
(2)
In this section and section 105—

“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);

Civil Partnership Bill [HL]
Part 3 — Civil partnership: Scotland
Chapter 3 — Occupancy rights and tenancies
52


“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
5
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—
10
(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,
15
(b)
the court has made an order under section 105 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,
20
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
25
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
30
(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
35
sale of an interest in heritable property, is the date of delivery to the purchaser
of the deed transferring title to that interest.
105
Dispensation with civil partner’s consent to dealing
(1)
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
40
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
45
been taken to trace that partner.

Civil Partnership Bill [HL]
Part 3 — Civil partnership: Scotland
Chapter 3 — Occupancy rights and tenancies
53

(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
5
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,
10
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 101(3).
(4)
Where—
15
(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.
20
106
Interests of heritable creditors
(1)
The rights of a third party with an interest in the family home as a creditor
under a secured loan in relation to the non-performance of any obligation
under the loan are not prejudiced by reason only of the occupancy rights of the
non-entitled partner; but where a non-entitled partner has or obtains
25
occupation of a family home and—
(a)
the entitled partner is not in occupation, and
(b)
there is a third party with such an interest in the family home,

the court may, on the application of the third party, make an order requiring
the non-entitled partner to make any payment due by the entitled partner in
30
respect of the loan.
(2)
This section does not apply to secured loans in respect of which the security
was granted prior to the commencement of section 13 of the Law Reform
(Miscellaneous Provisions) (Scotland) Act 1985 (c. 73) unless the third party in
granting the secured loan acted in good faith and there was produced to the
35
third party by the entitled partner—
(a)
an affidavit sworn or affirmed by the entitled partner declaring that
there is no non-entitled partner, or
(b)
a renunciation of occupancy rights or consent to the taking of the loan
which bears to have been properly made or given by the non-entitled
40
partner.
(3)
This section does not apply to secured loans in respect of which the security
was granted after the commencement of section 13 of the Law Reform
(Miscellaneous Provisions) (Scotland) Act 1985 unless the third party in
granting the secured loan acted in good faith and there was produced to the
45
third party by the grantor—
(a)
an affidavit sworn or affirmed by the grantor declaring that the security
subjects are not or were not at the time of the granting of the security a

Civil Partnership Bill [HL]
Part 3 — Civil partnership: Scotland
Chapter 3 — Occupancy rights and tenancies
54

family home in relation to which a civil partner of the grantor has or
had occupancy rights, or
(b)
a renunciation of occupancy rights or consent to the granting of the
security which bears to have been properly made or given by the non-
entitled partner.
5
(4)
For the purposes of subsections (2) and (3), the time of granting a security, in
the case of a heritable security, is the date of delivery of the deed creating the
security.
107
Provisions where both civil partners have title
(1)
Subject to subsection (2), where, apart from the provisions of this Chapter, both
10
civil partners are entitled to occupy a family home—
(a)
the rights in that home of one civil partner are not prejudiced by reason
only of any dealing of the other civil partner, and
(b)
a third party is not by reason only of such a dealing entitled to occupy
that home or any part of it.
15
(2)
Sections 104(3) and 105 and the definition of “dealing” in section 104(2) apply
for the purposes of subsection (1) as they apply for the purposes of section
104(1) but subject to the following modifications—
(a)
any reference to the entitled partner and to the non-entitled partner is
to be construed as a reference to a civil partner who has entered into, or
20
as the case may be proposes to enter into, a dealing and to the other civil
partner respectively, and
(b)
in paragraph (b) of section 105(4) the reference to occupancy rights is to
be construed as a reference to any rights in the family home.
108
Rights of occupancy in relation to division and sale
25
Where a civil partner brings an action for the division and sale of a family home
owned in common with the other civil partner, the court, after having regard
to all the circumstances of the case including—
(a)
the matters specified in paragraphs (a) to (d) of section 101(3), and
(b)
whether the civil partner bringing the action offers or has offered to
30
make available to the other civil partner any suitable alternative
accommodation,
may refuse to grant decree in that action or may postpone the granting of
decree for such period as it considers reasonable in the circumstances or may
grant decree subject to such conditions as it may prescribe.
35
109
Adjudication
(1)
Where a family home as regards which there is an entitled partner and a non-
entitled partner is adjudged, the Court of Session, on the application of the
non-entitled partner made within 40 days after the date of the decree of
adjudication, may—
40
(a)
order the reduction of the decree, or
(b)
make such order as it thinks appropriate to protect the occupancy
rights of the non-entitled partner,
if satisfied that the purpose of the diligence was wholly or mainly to defeat the
occupancy rights of the non-entitled partner.
45

Civil Partnership Bill [HL]
Part 3 — Civil partnership: Scotland
Chapter 3 — Occupancy rights and tenancies
55

(2)
Section 104(2) applies in construing “entitled partner” and “non-entitled
partner” for the purposes of subsection (1).
Transfer of tenancy
110
Transfer of tenancy
(1)
The court may, on the application of a non-entitled partner, make an order
5
transferring the tenancy of a family home to that partner and providing,
subject to subsection (12), for the payment by the non-entitled partner to the
entitled partner of such compensation as seems to it to be just and reasonable
in all the circumstances of the case.
(2)
In an action—
10
(a)
for dissolution of a civil partnership, the Court of Session or the sheriff,
(b)
for declarator of nullity of a civil partnership, the Court of Session,

may, on granting decree or within such period as the court may specify on
granting decree, make an order granting an application under subsection (1).
(3)
In determining whether to grant an application under subsection (1), the court
15
is to have regard to all the circumstances of the case including the matters
specified in paragraphs (a) to (e) of section 101(3) and the suitability of the
applicant to become the tenant and the applicant’s capacity to perform the
obligations under the lease of the family home.
(4)
The non-entitled partner is to serve a copy of an application under subsection
20
(1) on the landlord and, before making an order under subsection (1), the court
is to give the landlord an opportunity of being heard by it.
(5)
On the making of an order granting an application under subsection (1), the
tenancy vests in the non-entitled partner without intimation to the landlord,
subject to all the liabilities under the lease (other than liability for any arrears
25
of rent for the period before the making of the order).
(6)
The arrears mentioned in subsection (5) are to remain the liability of the
original entitled partner.
(7)
The clerk of court is to notify the landlord of the making of an order granting
an application under subsection (1).
30
(8)
It is not competent for a non-entitled partner to apply for an order under
subsection (1) where the family home—
(a)
is let to the entitled partner by the entitled partner’s employer as an
incident of employment, and the lease is subject to a requirement that
the entitled partner must reside there,
35
(b)
is or is part of an agricultural holding,
(c)
is on, or pertains to—
(i)
a croft,
(ii)
the subject of a cottar, or
(iii)
the holding of a landholder or of a statutory small tenant,
40
(d)
is let on a long lease, or
(e)
is part of the tenancy land of a tenant-at-will.
(9)
In subsection (8)—