Civil Partnership Bill [HL]

House of Commons

Session 2002 - 03
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Other Bills before Parliament

Civil Partnership Bill [HL]

Civil Partnership Bill [HL]
Part 3 — Civil partnership: Scotland
Chapter 3 — Occupancy rights and tenancies
48

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
entitled partner—
(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
improvements);
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
occupancy rights;
(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
home.
35
(4)
Where both partners are entitled, or permitted by a third party, to occupy a
family home—
(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

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

(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
either partner—
(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
and plenishings, or
(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
expenditure was made.
(8)
Where—
(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
the other partner.
(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.

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

(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
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—
10
(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
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
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
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
family home.
(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

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

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.
104
Exclusion orders
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
(c. 55), or
(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
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
the likely consequences of the exclusion of the non-applicant partner
30
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
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
applicant, and
(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;

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

(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
family home;
(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
other partner.
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
permitted.
(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
to that home, and
(b)
a third party is not by reason only of such a dealing entitled to occupy
45
that home or any part of it.

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

(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
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—
(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
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
(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
family home.
(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,
or

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

(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
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
15
in paragraphs (a) to (e) of section 103(3).
(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,
20
the action is to be sisted until the conclusion of the proceedings on the
application.
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
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
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
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
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—