In Part 1 we discussed what types of property can be classed as matrimonial homes and the criteria that has to be met. Now we will look at occupancy rights and what protection the law provides for married couples who own property either jointly and in their sole name.
What are occupancy rights?
Occupancy rights are the right to remain in the matrimonial home following the breakdown of the marriage or civil partnership. Occupancy rights apply to both partners in the marriage or civil partnership however; occupancy rights are used when only one partner owns the property in their sole name.
My Spouse owns the property but I live there, do I have occupancy rights?
In order to answer this question, we need to discuss the phrases 'entitled spouse' and 'non-entitled spouse'. Where only one spouse owns the property in a marriage or civil partnership, the spouse that owns the property is called an 'entitled spouse' and they have occupancy rights to the property as they own the property. The spouse that does not own the property is called the 'non-entitled' spouse as while they may live in the property, they are not registered on the Title Deeds.
The non-entitled spouse is protected the Matrimonial Homes (Family Protection) (Scotland) Act 1981 and Civil Partnership Act 2004; which were designed to protect the rights of the person who is married to the owner of property to prevent them have being thrown out of their home if the relationship were to break down.
It is important to note that occupancy rights are only a right to occupy the property; it does not provide you with any title to the property.
My Spouse and I own the property equally, who has occupancy rights?
But what if a couple own a house equally? They each have title to the property, so who has occupancy rights in that case, both or neither? The answer is both, they each have occupancy rights. In that case if you are married or have entered a civil partnership, your spouse cannot force you to leave the matrimonial home without a court order.
Do occupancy rights expire?
Yes, occupancy rights to a matrimonial home expire:
1. if they are not exercised for two years or more;
2. on divorce;
3. or dissolution of a civil partnership.
My Spouse will not let me into the property?
If you are refused entry into the property then you should consult a solicitor straight away. The solicitor will start by raising court proceedings to regulate you as the non-entitled spouse's right to occupy the matrimonial home. The court can declare, enforce, regulate and protect the occupancy rights of the non-entitled spouse as well as restrict the occupancy rights of the entitled spouse.
MMI Golden Rule: It is important to know your rights in relation to your property in case of the relationship breaking down or as we will see in Part 3, how important these rights are when you are purchasing or selling property.