The right to sell the family home on marriage breakdown

11 May 2012


When a married couple decide to separate, the issue of where both parties will live will be a major consideration. Some couples may have bought a property together and jointly own it. However, if one party alone owns the property, all is not completely lost for the other person. The Matrimonial Homes (Family Protection) (Scotland) Act 1981 provides a safety net. It also does so for cohabiting couples who are not married, albeit to a lesser extent.
Under section 18 of the Act, protection is given to cohabiting couples; this is designed to protect a ‘non-entitled’ person who is not the owner of the property. This provision can give the non-entitled cohabitant a period of 6 months in which they are entitled to stay in the property. This is thought to be a sufficient timeframe in order to allow the non-entitled spouse to find alternative accommodation.
For a married couple where only one spouse is the owner of the property, on identifying that the property is in fact the matrimonial home, the non-entitled spouse has a right under section 1 of the Act to occupy the home, and if they are not currently in occupation, to enter the home and occupy it. It is a powerful provision that allows the non-owner the same right to live in the property as the owner. If the owner refuses to allow the non-entitled spouse to occupy, a court can make an order to force them to do so.
As for any property that is owned jointly, each owner is entitled to decide to sell the property in an action known as division and sale. This is an action that is sought through the Sheriff court. The property is sold and the proceeds divided in an equitable way, depending on the share owned, any agreement made between the couple, and investment made in the property by either party.
However, if a couple own the property jointly, section 19 of the 1981 Act applies. It states that where a property is owned jointly and one party raises an action for division and sale, the court can refuse this if it is reasonable to do so in all the circumstances if the property is identified as matrimonial home. These circumstances could be wide ranging but it is likely the court will look at the financial ability of either party to find alternative accommodation and whether they have been offered alternative accommodation by the other party, whether there are children of the relationship that require stable accommodation, and also the conduct of the parties.
However a recent case from earlier this year highlights the importance of stating section 19 as a defence in such circumstances. In Duncan v Duncan, a section 19 defence would have been valid had it been used at all. The pursuer wanted division and sale of a jointly owned property. The defender objected, but did not use section 19 and state that the property was a matrimonial home under the Act. Despite being under the impression that not seeking this as a defence would not be fatal in allowing the court to recognise this was a matrimonial home, the Sheriff disagreed. Whilst the defender had highlighted the conduct and financial situation of the parties, the lack of averment that the property was matrimonial meant the Sheriff was unable to take this into account when deciding whether to allow division and sale, which was duly granted. The need to be definite in relying on this section for a defence seems clear from this case.

If you need advice on divorce or separation in Scotland, our Gus Macaulay is an experienced family law practitioner. Contact Gus on 0141 229 0880 or send Gus an email.

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