The Matrimonial Homes (Family Protection) (Scotland) Act 1981 deals with rights after dealing and one of the most important provisions is of the act is Section 6. This deals with what happens to a non-entitled spouseโ€™s right to live in the home when the property is sold, mortgaged, or otherwise dealt with by the โ€œentitled spouseโ€.

Who is the โ€œentitled spouseโ€ and โ€œnon-entitled spouseโ€?

  • Entitled spouse โ€“ the spouse who owns the home or holds the tenancy.
  • Non-entitled spouse โ€“ the spouse who does not hold the title or tenancy but has occupancy rights through marriage.

These occupancy rights exist to protect the family home from being disposed of or encumbered without the knowledge or agreement of the other spouse.

What Section 6 says in practice

1. Protection against dealings (subsection 1)

If the entitled spouse tries to sell, mortgage, or otherwise โ€œdeal withโ€ the home, the non-entitled spouseโ€™s occupancy rights are not automatically lost just because of that dealing.

  • For example, if a husband sells the home without his wifeโ€™s consent, she may still have a legal right to remain in occupation.
  • Similarly, a third party buyer or lender cannot assume they are entitled to take possession simply because a transfer or security has been granted.

This reflects the policy of protecting the family home and preventing one spouse from unilaterally undermining the otherโ€™s right to live there.

1A. The good faith purchaser exception (subsection 1A)

If a third party acquires the property in good faith and for value from someone other than the entitled spouse, the non-entitled spouseโ€™s occupancy rights cannot be exercised against them.

This ensures that innocent purchasers, who buy in the open market without knowledge of hidden occupancy rights, are not unfairly penalised. It balances family protection with commercial certainty in property transactions.

2. What counts as a โ€œdealingโ€ (subsection 2)

The Act defines โ€œdealingโ€ widely. It includes:

  • The grant of a heritable security (a mortgage),
  • The grant of a statutory pledge,
  • The creation of a trust.

This wide definition means that most forms of transfer or security given over the matrimonial home fall within the scope of Section 6.

3. When Section 6 protections do not apply (subsection 3)

There are several situations where a non-entitled spouse cannot rely on Section 6. These include:

  • Consent or renunciation: If the non-entitled spouse has formally consented in writing, or has renounced their occupancy rights in a notarised document, the protection does not apply.
  • Court order: The court can dispense with consent under Section 7.
  • Pre-marriage obligations: If the entitled spouse entered into a binding obligation before the marriage, or before the 1981 Act came into force, the dealing may stand.
  • Good faith transfer: A purchaser acting in good faith who is given a statutory declaration or a renunciation from the non-entitled spouse is protected.
  • Two-year non-occupation rule: If the entitled spouse has permanently ceased to live in the property and the non-entitled spouse has not occupied it for two years, occupancy rights may lapse.

4. Links to the Land Registration system (subsection 4)

The Act also amends the Land Registration (Scotland) Act 1979 so that occupancy rights of a non-entitled spouse can amount to an overriding interest. This means they can bind purchasers, reinforcing the protective purpose of the legislation.

Why this section matters

Section 6 is crucial because it prevents a spouse from being evicted or displaced without their consent simply because the other spouse has taken steps to sell or mortgage the property. It underlines the principle that marriage carries with it legal protections for the family home, regardless of who holds the title deeds.

However, the section also recognises the need for certainty in property dealings, hence the exceptions for good faith purchasers and the requirement for written consents or renunciations.

Practical implications for couples and third parties

  • For non-entitled spouses: You have legal protection even if you are not on the title deeds. But these rights can be lost if you give written consent, renounce them in a notarised document, or fail to occupy the property for a lengthy period (two years).
  • For entitled spouses: You cannot freely sell or mortgage the home without considering your spouseโ€™s occupancy rights. Doing so may leave the transaction vulnerable. Realistically a conveyancer would require a renunciation of occupancy rights before allowing their client to buy a property.
  • For purchasers and lenders: Due diligence is essential. As above, solicitors will often require a non-entitled spouseโ€™s written consent or a statutory declaration to protect their client.

Conclusion

Section 6 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 is a cornerstone of family property law. It preserves the occupancy rights of the non-entitled spouse against unilateral dealings by the entitled spouse, while also safeguarding the interests of good faith purchasers.

For anyone dealing with separation, divorce, or property transactions involving a matrimonial home, understanding this section is essential. Legal advice should always be sought to ensure rights are protected and obligations complied with.

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