At XK Family Law Solicitors in Aberdeen, one of the questions we often hear from clients is: “Can my spouse sell or mortgage our home without my consent?”. Section 7 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 answers that question. This section gives the court power, in certain limited situations, to dispense with a spouse’s consent to a “dealing” with the matrimonial home.
This section works closely with Section 6, which protects the rights of a non-entitled spouse (the spouse who does not own the home). Section 7 sets out when the court may step in and allow a transaction- such as a sale or a mortgage – to proceed even without that spouse’s consent.
Who are the “entitled” and “non-entitled” spouses?
- Entitled spouse – the husband or wife who owns the title to the matrimonial home or holds the tenancy.
- Non-entitled spouse – the other partner, who has occupancy rights under the Act but no legal title.
Normally, the consent of the non-entitled spouse is required before the home can be sold, transferred, or mortgaged. Section 7 recognises that there are times when that consent might be withheld unfairly or cannot practically be obtained, and it allows the court to intervene.
When the court can dispense with consent
Under Section 7(1), the court may grant an order dispensing with a non-entitled spouse’s consent to a past or proposed dealing if one of the following applies:
- Consent is unreasonably withheld – for example, where a spouse refuses consent purely to obstruct, rather than for genuine reasons related to their welfare or that of the family.
- Consent cannot be given because of incapacity – if a spouse is physically or mentally unable to give consent.
- The spouse cannot be found – after reasonable attempts to trace them.
- The spouse is under a legal disability due to non-age – meaning they are under 16 and legally incapable of consent.
This ensures that property dealings can still progress in exceptional circumstances, while the court safeguards the interests of the non-entitled spouse.
Conditions for sales and mortgages
Amendments to the Act introduced subsections (1A)–(1D), which place limits on the court’s power in sales and mortgages:
- For a sale:
- The court must specify the minimum price for which the home can be sold.
- The sale contract must be concluded within a set time period stated in the order.
- For a heritable security (mortgage):
- The court must specify the maximum loan amount permitted.
- The security must be granted within a defined period.
These safeguards prevent the entitled spouse from taking advantage of the dispensation order to sell below value or borrow more than justified.
What counts as “unreasonably withheld”?
Section 7(2) gives two examples:
- Where the non-entitled spouse led the other to believe they would consent and there has been no significant change in circumstances.
- Where the entitled spouse has made reasonable efforts to obtain consent but received no reply.
In either situation, the court may regard the refusal or lack of response as unreasonable and allow the transaction to go ahead.
The court’s considerations
Under Section 7(3), the court must consider all the circumstances, including the welfare factors listed in Section 3(3) of the Act—such as the housing needs and financial resources of each spouse, and the wellbeing of any children.
In other words, the court looks beyond legal ownership and examines the real-life impact on the family before making a decision.
Power to impose conditions on the occupier
If the court refuses to dispense with consent, Section 7(3A) gives it discretion to make an order requiring the non-entitled spouse who remains in occupation to:
- make payments to the owner for living in the home, or
- comply with other conditions regarding their occupation.
This allows the court to strike a fair balance between the owner’s rights and the continued occupation by the other spouse.
Interaction with occupancy rights cases running at the same time
Section 7(4) prevents conflicting proceedings. If an application to dispense with consent is before the court and the non-entitled spouse has also raised a separate action to enforce occupancy rights, then the action for occupancy rights will be sisted (paused) until the application under Section 7 is resolved.
Why this section matters
For many across Scotland, the matrimonial home is the most valuable asset. Section 7 of the 1981 Act provides a mechanism to resolve disputes where one spouse’s consent is withheld or unavailable, without allowing unfair advantage or financial harm.
It balances:
- the property rights of the entitled spouse,
- the protective rights of the non-entitled spouse, and
- the legitimate interests of third parties such as lenders or buyers.
Guidance and case law
While each case turns on its own facts, Scottish courts have emphasised that the test of “unreasonable withholding” must be applied carefully and proportionately. The decision in Cunningham v Cunningham 1984 SLT 449 illustrates how the court assesses whether refusal of consent was justified in light of family circumstances.
Conclusion
Section 7 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 is an important safeguard that ensures property transactions cannot be blocked without good reason, while still protecting spouses who have a genuine right to remain in their home.
At XK Family Law Solicitors in Aberdeen, we advise clients daily on occupancy rights, matrimonial property, and the implications of sections 6 and 7 of the 1981 Act. If you are concerned about consent to the sale or mortgage of your home, our experienced family law team can provide clear, practical advice tailored to your situation.
Contact XK Family Law Solicitors in Aberdeen today for confidential guidance on your rights under the Matrimonial Homes (Family Protection) (Scotland) Act 1981.
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Email: info@xksolicitors.co.uk
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