Spouses versus unmarried couples: Occupancy Rights

Before 1981, there was no automatic legal right for a non-entitled spouse, that is a spouse who did not own a share in the matrimonial home or was not permitted to live there by a third party, to occupy that property. This placed non-entitled spouses in an incredibly vulnerable position. This was rectified by the Matrimonial Homes (Family Protection) (Scotland) Act 1981. Non-entitled spouses could now acquire occupancy rights automatically at the commencement of the marriage. They no longer faced the prospect of being forced to leave the matrimonial home, simply by virtue of them not having a right to live there. The Family Law (Scotland) Act 2006 further amended the law to provide that the provisions of the 1981 Act would apply to same sex couples and civil partners.

The legislation extends legal protection to non-entitled spouses, where they are, for example, victims of domestic abuse. They have the right to apply to the Court to seek an ‘interdict’ (an order to stop certain conduct from occurring). A power of arrest can be attached to that interdict, which allows the police to take positive action in light of the abusive conduct continuing. In the most extreme cases, a non-entitled spouse can apply to the court to exclude an entitled spouse from the home citing their behaviour as the reason.

In stark contrast to the rights enjoyed by spouses and civil partners, the legal position of cohabitants is more precarious. There is no automatic right to acquire occupancy rights as a ‘non-entitled partner’. Cohabitants potentially face the prospect of being forced to leave a property in the event that the relationship breaks down. The only option open to cohabitants now is to make an application to the Court. Occupancy rights can be granted for a period not exceeding six months in terms of Section 18 of the 1981 Act. That timeline can be further extended on request. There is no limit to the number of extensions but each extension will only be for a period not exceeding six months.

The wording of section 18(1) of the 1981 act states:
“If a man and a woman are living with each other as if they were man and wife or two persons of the same sex are living together as if they were civil partners (‘in either case a cohabiting couple’) in a house which, apart from the provisions of this section—
(a) one of them (an ‘entitled partner’) is entitled, or permitted by a third party, to occupy; and
(b) the other (a ‘non-entitled partner’) is not so entitled or permitted to occupy,

the court may, on the application of the non-entitled partner, if it appears that the entitled partner and the non-entitled partner are a cohabiting couple in that house, grant occupancy rights therein to the applicant for such period, not exceeding 6 months, as the court may specify: Provided that the court may extend the said period for a further period or periods, no such period exceeding 6 months.”

The legal position around when an application for occupancy rights should be made has recently been clarified by the Sheriff Appeal Court in the case of McBride against McInnes 2024 SAC (Civ) 42. In this case, the parties were former cohabitants. Mr McInnes appealed against a decision of the Sheriff which granted interim (temporary) occupancy rights, as well as an interim interdict preventing the sale, transfer or letting of his property. It was agreed that the interim interdict was wrongly sought and should not have been granted. The issue that the appeal court had to determine was whether it was competent to grant interim occupancy rights and whether it was competent to grant occupancy rights to Ms McBride at all. Of significance, it was agreed that the parties stopped cohabiting on 23rd May 2023. Ms McBride made an application to court for occupancy rights in April 2024. Domestic abuse was not a live issue in this case.

The Court adopted a literal interpretation of the statutory wording. The Sheriff Appeal Court accordingly determined that an order for occupancy rights must be applied for by a non-entitled partner during the period where the parties are in a cohabiting relationship.

As the law currently stands, a cohabitant requires to apply for occupancy rights prior to their relationship with their partner coming to an end. On one hand, cohabitants may enjoy a loving relationship, but on the other hand, the cohabitant who does not have occupancy rights will require to raise proceedings against their partner during the course of their cohabitation, to obtain and maintain such rights.

A review of the cohabitation legislation has been proposed by the Scottish Law Commission. A link to the Report executive summary can be found here: https://www.scotlawcom.gov.uk/files/7816/6791/0051/Executive_Summary_v1.0_-_final_version.pdf

Whilst the proposals from the Scottish Law Commission are considered, one practical solution could be for parties to enter into a ‘cohabitation agreement’. These are bespoke, detailed, and legally binding agreements that both parties willingly enter into, which set out the rights and protections that each cohabitant may enjoy during the course of their cohabitation, and in the event of their cohabitation coming to an end. To find out more about how such agreements can apply to your own living circumstances, please contact a member of the Family Law team at Harper Macleod.