This is a common issue in Edinburgh. When a couple divorces or separates one of the first things they worry about is who should keep the home and whether one party can force the other to leave?
Beverley Johnson explains the ins and outs of this tricky issue.
If you’re cohabiting but aren’t married
Say you own or are named as the sole tenant of the property. You can’t force your ex to leave or deny them entry as they’re protected under the Matrimonial Homes (Family Protection) (Scotland) Act 1981.
However, their right to occupy can only be declared by a court and typically lasts six months, with the court able to extent the period by another six months. But you would have every right to sell the house, unlike married couples or those in a civil partnership.
If you co-own the property with your partner then neither of you can force the other to leave. And if you want to sell but they don’t then they must raise an action of division and sale. This basically means asking the court to order the sale.
If you’re married or in a civil partnership
Even if you own the property or are named as the tenant, you don’t have the right to force your husband or wife to leave.
The 1981 act allows a ‘non-entitled’ former partner or spouse, as well as any children, to remain in the property indefinitely. This still applies even if the house is sold to a third party.
As the owner of the property, you can only sell if you obtain the consent of your husband or wife. However if they refuse to give consent they must have a valid reason.
Removing your husband or wife is possible with a court order. However such orders are dependent on being deemed necessary for the protection of yourself or any children from the actions of your partner. For example if they’re likely to be harmful or have threatened harmful conduct. This is most often granted in cases involving domestic abuse.
If you both own or are named tenants of the property then you can only remove your partner with an exclusion order.
Finally, what if you both own the house or are tenants and you want to sell but your partner doesn’t? In this case you must raise an action of division and sale. However, unlike with cohabiting partners, your spouse can request that the court postpones or refuses the sale. This is most commonly achieved if you have children and there’s no alternative accommodation.
Always seek legal advice
These situations are always complicated and many aspects need to be considered. Which is why it’s best to seek professional legal advice, saving you the inevitable hassle and hardship that are part and parcel of separation.
Beverly Johnson has dealt with numerous legal separation cases all over Edinburgh and Lothian. So if you’d like to discuss these or any similar issues, please get in touch and we’ll be happy to help.
