|
| |
|
102 | Occupancy: subsidiary and consequential rights |
| |
(1) | For the purpose of securing the occupancy rights of a non-entitled partner, that |
| |
partner is, in relation to a family home, entitled without the consent of the |
| |
| |
(a) | to make any payment due by the entitled partner in respect of rent, |
| 5 |
rates, secured loan instalments, interest or other outgoings (not being |
| |
outgoings on repairs or improvements); |
| |
(b) | to perform any other obligation incumbent on the entitled partner (not |
| |
being an obligation in respect of non-essential repairs or |
| |
| 10 |
(c) | to enforce performance of an obligation by a third party which that |
| |
third party has undertaken to the entitled partner to the extent that the |
| |
entitled partner may enforce such performance; |
| |
(d) | to carry out such essential repairs as the entitled partner may carry out; |
| |
(e) | to carry out such non-essential repairs or improvements as may be |
| 15 |
authorised by an order of the court, being such repairs or |
| |
improvements as the entitled partner may carry out and which the |
| |
court considers to be appropriate for the reasonable enjoyment of the |
| |
| |
(f) | to take such other steps, for the purpose of protecting the occupancy |
| 20 |
rights of the non-entitled partner, as the entitled partner may take to |
| |
protect the occupancy rights of the entitled partner. |
| |
(2) | Any payment made under subsection (1)(a) or any obligation performed under |
| |
subsection (1)(b) has effect in relation to the rights of a third party as if the |
| |
payment were made or the obligation were performed by the entitled partner; |
| 25 |
and the performance of an obligation which has been enforced under |
| |
subsection (1)(c) has effect as if it had been enforced by the entitled partner. |
| |
(3) | Where there is an entitled and a non-entitled partner, the court, on the |
| |
application of either of them, may, having regard in particular to the respective |
| |
financial circumstances of the partners, make an order apportioning |
| 30 |
expenditure incurred or to be incurred by either partner— |
| |
(a) | without the consent of the other partner, on any of the items mentioned |
| |
in paragraphs (a) and (d) of subsection (1); |
| |
(b) | with the consent of the other partner, on anything relating to a family |
| |
| 35 |
(4) | Where both partners are entitled, or permitted by a third party, to occupy a |
| |
| |
(a) | either partner is entitled, without the consent of the other partner, to |
| |
carry out such non-essential repairs or improvements as may be |
| |
authorised by an order of the court, being such repairs or |
| 40 |
improvements as the court considers to be appropriate for the |
| |
reasonable enjoyment of the occupancy rights; |
| |
(b) | the court, on the application of either partner, may, having regard in |
| |
particular to the respective financial circumstances of the partners, |
| |
make an order apportioning expenditure incurred or to be incurred by |
| 45 |
either partner, with or without the consent of the other partner, on |
| |
anything relating to the family home. |
| |
(5) | Where one partner (“A”) owns or hires, or is acquiring under a hire-purchase |
| |
or conditional sale agreement, furniture and plenishings in a family home— |
| |
(a) | the other partner may, without the consent of A— |
| 50 |
|
| |
|
| |
|
(i) | make any payment due by A which is necessary, or take any |
| |
other step which A is entitled to take, to secure the possession |
| |
or use of any such furniture and plenishings (and any such |
| |
payment is to have effect in relation to the rights of a third party |
| |
as if it were made by A), or |
| 5 |
(ii) | carry out such essential repairs to the furniture and plenishings |
| |
as A is entitled to carry out; |
| |
(b) | the court, on the application of either partner, may, having regard in |
| |
particular to the respective financial circumstances of the partners, |
| |
make an order apportioning expenditure incurred or to be incurred by |
| 10 |
| |
(i) | without the consent of the other partner, in making payments |
| |
under a hire, hire-purchase or conditional sale agreement, or in |
| |
paying interest charges in respect of the furniture and |
| |
plenishings, or in carrying out essential repairs to the furniture |
| 15 |
| |
(ii) | with the consent of the other partner, on anything relating to the |
| |
furniture or plenishings. |
| |
(6) | An order under subsection (3), (4)(b) or (5)(b) may require one partner to make |
| |
a payment to the other partner in implementation of the apportionment. |
| 20 |
(7) | Any application under subsection (3), (4)(b) or (5)(b) is to be made within 5 |
| |
years after the date on which any payment in respect of such incurred |
| |
| |
| |
(a) | the entitled partner is a tenant of a family home, |
| 25 |
(b) | possession of it is necessary in order to continue the tenancy, and |
| |
(c) | the entitled partner abandons such possession, |
| |
| the tenancy is continued by such possession by the non-entitled partner. |
| |
(9) | In this section “improvements” includes alterations and enlargement. |
| |
103 | Regulation by court of rights of occupancy of family home |
| 30 |
(1) | Where there is an entitled and a non-entitled partner, or where both partners |
| |
are entitled, or permitted by a third party, to occupy a family home, either |
| |
partner may apply to the court for an order— |
| |
(a) | declaring the occupancy rights of the applicant partner; |
| |
(b) | enforcing the occupancy rights of the applicant partner; |
| 35 |
(c) | restricting the occupancy rights of the non-applicant partner; |
| |
(d) | regulating the exercise by either partner of his or her occupancy rights; |
| |
(e) | protecting the occupancy rights of the applicant partner in relation to |
| |
| |
(2) | Where one partner owns or hires, or is acquiring under a hire-purchase or |
| 40 |
conditional sale agreement, furniture and plenishings in a family home and the |
| |
other partner has occupancy rights in that home, that other person may apply |
| |
to the court for an order granting to the applicant the possession or use in the |
| |
family home of any such furniture and plenishings; but, subject to section 102, |
| |
an order under this subsection does not prejudice the rights of any third party |
| 45 |
in relation to the non-performance of any obligation under such hire-purchase |
| |
or conditional sale agreement. |
| |
|
| |
|
| |
|
(3) | The court is to grant an application under subsection (1)(a) if it appears to the |
| |
court that the application relates to a family home; and, on an application |
| |
under any of paragraphs (b) to (e) of subsection (1) or under subsection (2), the |
| |
court may make such order relating to the application as appears to it to be just |
| |
and reasonable having regard to all the circumstances of the case including— |
| 5 |
(a) | the conduct of the partners, whether in relation to each other or |
| |
| |
(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— |
| 10 |
| |
(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 |
| |
| 15 |
(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— |
| 20 |
(a) | the residence of either partner in the home to which the application |
| |
| |
(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 |
| 25 |
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 |
| |
| |
(6) | If the court makes an order under subsection (3) or (4) which requires the |
| 30 |
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 |
| 35 |
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 |
| 40 |
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 |
| 45 |
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 |
| |
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. |
| |
| 5 |
(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 |
| |
order”) suspending the occupancy rights of the other partner (“the non- |
| 10 |
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 |
| |
conduct, of the non-applicant partner which is or would be injurious to the |
| 15 |
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 |
| |
specified in paragraphs (a) to (e) of section 103(3), and |
| 20 |
(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 |
| |
| |
(ii) | is let, or is a home in respect of which possession is given, to the |
| 25 |
non-applicant partner or to both partners by an employer as an |
| |
| |
| 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 |
| |
the likely consequences of the exclusion of the non-applicant partner |
| 30 |
| |
(4) | In making an exclusion order the court is, on the application of the applicant |
| |
| |
(a) | to grant a warrant for the summary ejection of the non-applicant |
| |
partner from the family home unless the non-applicant partner satisfies |
| 35 |
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 |
| |
| |
(c) | to grant an interdict prohibiting the removal by the non-applicant |
| 40 |
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. |
| |
(5) | In making an exclusion order the court may— |
| 45 |
(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 |
| |
the preservation of that partner’s goods and effects which remain in the |
| |
| |
(c) | on the application of either partner, make the exclusion order or the |
| 5 |
warrant or interdict mentioned in paragraph (a), (b) or (c) of subsection |
| |
(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 |
| 10 |
subsection (4) or paragraph (a), (b) or (c). |
| |
(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 |
| 15 |
order as they apply to an exclusion order. |
| |
(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 |
| 20 |
one partner to bring an action of ejection from the family home against the |
| |
| |
105 | Duration of orders under sections 103 and 104 |
| |
(1) | The court may, on the application of either partner, vary or recall any order |
| |
made by it under section 103 or 104. |
| 25 |
(2) | Subject to subsection (3), any such order, unless previously so varied or |
| |
recalled, ceases to have effect— |
| |
(a) | on the dissolution of the civil partnership, |
| |
(b) | subject to section 106(1), where there is an entitled and non-entitled |
| |
partner, on the entitled partner ceasing to be an entitled partner in |
| 30 |
respect of the family home to which the order relates, or |
| |
(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 |
| |
| |
(3) | Without prejudice to the generality of subsection (2), an order under section |
| 35 |
103(3) or (4) which grants the possession or use of furniture and plenishings |
| |
ceases to have effect if the furniture and plenishings cease to be permitted by a |
| |
third party to be retained in the family home. |
| |
106 | Continued exercise of occupancy rights after dealing |
| |
(1) | Subject to subsection (3)— |
| 40 |
(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 |
| |
| |
(b) | a third party is not by reason only of such a dealing entitled to occupy |
| 45 |
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 |
| 5 |
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 |
| 10 |
| |
| (“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 |
| 15 |
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 |
| 20 |
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, |
| 25 |
(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 |
| 30 |
| |
(ii) | a renunciation of occupancy rights or consent to the dealing |
| |
which bears to have been properly made or given by the non- |
| |
| |
(f) | the entitled partner has permanently ceased to be entitled to occupy the |
| 35 |
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 |
| |
| |
(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 |
| 40 |
of the deed transferring title to that interest. |
| |
107 | 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 |
| |
partner to a dealing which has taken place or a proposed dealing, if— |
| 45 |
(a) | such consent is unreasonably withheld, |
| |
(b) | such consent cannot be given by reason of physical or mental disability, |
| |
| |
|
| |
|
| |
|
(c) | the non-entitled partner cannot be found after reasonable steps have |
| |
been taken to trace that partner. |
| |
(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— |
| 5 |
(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 |
| 10 |
| |
(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 |
| 15 |
in paragraphs (a) to (e) of section 103(3). |
| |
| |
(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 |
| |
| 20 |
the action is to be sisted until the conclusion of the proceedings on the |
| |
| |
108 | 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 |
| 25 |
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 |
| |
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, |
| 30 |
| 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 |
| |
| |
(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 |
| 35 |
(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 |
| |
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 |
| 40 |
(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 |
| |
| |
(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 |
| 45 |
(Miscellaneous Provisions) (Scotland) Act 1985 unless the third party in |
| |
granting the secured loan acted in good faith and there was produced to the |
| |
third party by the grantor— |
| |
|
| |
|