Deciding who stays in the family home during and after a divorce can be one of the most challenging and emotional aspects of separation. In Scotland, there are specific legal principles that guide this process, and understanding your rights can help you make informed decisions about your future.
Who Has the Right to Stay in the Family Home?
In Scotland, the family home is considered “matrimonial property” if it was purchased or acquired for use during the marriage. Whether the property is owned solely by one spouse or jointly, both parties typically have occupancy rights under the Matrimonial Homes (Family Protection) (Scotland) Act 1981.
This means that, unless a court order is made, both you and your spouse have the legal right to live in the home during the separation or divorce process, regardless of whose name is on the title deeds or mortgage.
What Are My Options?
The outcome for the family home depends on your circumstances, and several options may be considered:
- One Spouse Buys Out the Other
If one spouse wishes to remain in the family home, they can negotiate to buy out the other’s share as part of the financial settlement. This arrangement requires agreement on the home’s value and, in most cases, legal assistance to transfer ownership. - Selling the Property
Selling the family home and dividing the proceeds is a common solution, especially if neither party can afford to maintain the property alone. The division of the proceeds will depend on what is deemed “fair sharing” under Scots law, often resulting in an equal split unless specific circumstances suggest otherwise. - Continuing Joint Ownership
In some cases, separating spouses agree to maintain joint ownership of the family home for a transitional period. This might be done to provide stability for children or allow one spouse time to secure alternative accommodation. - Court Orders
If an agreement cannot be reached, a court can issue an order determining who can live in the family home. This could result in one spouse being granted exclusive occupancy rights, particularly if the welfare of children is a factor.
Can I Be Forced to Leave the Family Home?
In most cases, neither party can be forced to leave the family home without a court order. However, exceptions apply if there is evidence of abusive or threatening behaviour. In such situations, the court can issue an exclusion order, preventing the offending spouse from entering the property.
What Happens if Children Are Involved?
When children are involved, their welfare is the court’s primary concern. This often means ensuring they have stability and continuity, which can influence decisions about who remains in the family home. For example, the parent who takes on the primary care giving role may have a stronger case for staying in the property.
Legal Advice Is Crucial
The division of the family home is just one aspect of the financial settlement in a divorce, and it can significantly impact your financial and emotional future. Seeking expert legal advice is crucial to understand your options and rights under Scottish family law.
How Can We Help?
For expert legal advice or assistance with any aspect of Family Law, book a free initial consultation with us today. Please contact us on 0131 622 8477 email: [email protected] or submit your enquiry here.
You can also visit our video library, which features legal advice from our lawyers across a number of topics, submit a question to our anonymous Q&A, or check out our Wellbeing Hub for emotional support.
