The Matrimonial Homes (Family Protection) (Scotland) Act 1981 gives spouses and cohabitants rights to occupy the family home. Section 4 of the Act deals with exclusion orders – powerful court orders that can suspend one spouse’s or partner’s right to reside in the matrimonial home.
Exclusion orders are most often used in cases involving domestic abuse, threats of violence, or serious conflict within the home. They are designed to protect a spouse or child from conduct that is, or could be, harmful to their physical or mental health.
What Is an Exclusion Order?
An exclusion order is a court order suspending the occupancy rights of one spouse so that the other spouse (the applicant) can remain in the matrimonial home without them.
Importantly, either spouse can apply – whether or not they are currently living in the home.
When Will the Court Grant an Exclusion Order?
Under Section 4(2), the court must make an exclusion order if:
- The order is necessary to protect the applicant or a child of the family, and
- The protection is needed against conduct, threatened conduct, or reasonably apprehended conduct of the non-applicant spouse,
- Where such conduct would be injurious to the physical or mental health of the applicant or child.
This is a protective measure, the focus is not only on actual harm but also on preventing threatened or likely harm.
Limits on Exclusion Orders
The court will not grant an exclusion order if it would be unjustified or unreasonable in the circumstances (Section 4(3)).
The court must consider factors such as:
- The conduct of the spouses.
- The financial resources and needs of each spouse.
- The needs of any children of the family.
- Any use of the home for business or trade purposes.
- Whether suitable alternative accommodation has been offered.
There are also restrictions if the home is:
- An agricultural holding, or
- Tied accommodation provided by an employer requiring residence as part of employment.
In such cases, the court must weigh the consequences carefully before excluding the non-applicant spouse.
Additional Orders the Court Can Grant
When making an exclusion order, the court can also:
- Grant a warrant for summary ejection, requiring the non-applicant spouse to leave the home permanently.
- Grant an interdict preventing that spouse from re-entering the home without permission.
- Prohibit the removal of furniture and plenishings without consent or court order.
- Impose area restrictions, stopping the non-applicant from entering or remaining in a specified area near the home.
- Make directions about preserving the excluded spouse’s belongings.
These powers ensure that an exclusion order is workable and enforceable.
Interim Exclusion Orders
Under Section 4(6), the court can grant an interim exclusion order pending the final decision. This means temporary protection can be put in place quickly, provided the non-applicant spouse has had an opportunity to be heard.
Practical Importance of Exclusion Orders
Exclusion orders are one of the strongest forms of protection under Scottish family law. They are particularly relevant in cases involving:
- Domestic abuse or violence.
- Harassment or threats within the home.
- Situations where the safety and wellbeing of children are at risk.
They balance the protection of vulnerable family members with the rights of the spouse being excluded. The court’s discretion ensures that such orders are only made when truly necessary and proportionate.
Conclusion
Section 4 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 provides the legal framework for exclusion orders in Scotland. These orders can remove a spouse or partner from the family home where their presence poses a risk to the health and wellbeing of the other spouse or children.
The law is careful to prevent abuse of the process – exclusion orders are only granted where justified, and they are backed up by a range of supporting remedies to make them effective.
Expert Advice on Exclusion Orders
At XK Family Law Solicitors Aberdeen, we provide expert advice and representation on exclusion orders, occupancy rights, and protective remedies under the Matrimonial Homes (Family Protection) (Scotland) Act 1981.
If you are experiencing difficulties at home and need urgent advice on your legal options, contact us today.
Ready to discuss your case?
Email: info@xksolicitors.co.uk
Our articles are not legal advice. We accept no responsibility for use of this information.