Do I have legal right to move back into the FMH?

I seperated from my ex 2 and a half years ago and moved out of the home we shared. She is delaying any progress with the divorce any way she can for reasons unknown to me, although i presume spite have something to do with it. Both our names are still on the deeds and nothing has been signed over to her. Can anybody tell me if I have a legal right to occupy the property as I am still an owner of the property in question. I fear this may be the only way I will be able to force her into some kind of action regarding the divorce.

After an absence of more than 2 years, you have given up your occupational rights to the property.

(s)7 matrimonial homes and Family Protection Act 1981 [Scotland] (as amended by the Family Law (Scotland) Act 2006)

Subject to subsection (5), if—
(a)there has been no cohabitation between an entitled spouse and a non-entitled spouse during a continuous period of two years; and
(b)during that period the non-entitled spouse has not occupied the matrimonial home,the non-entitled spouse shall, on the expiry of that period, cease to have occupancy rights in the matrimonial home.

(8)A non-entitled spouse who has ceased to have occupancy rights by virtue of subsection (7) may not apply to the court for an order under section 3(1).

Hi Greengoblin

I have researched this and it seems same in Scotland as far as i can see. Check shelter website. It says that if you are joint owner and registered on deeds then you have joint occupancy rights unless a court orders otherwise - nothing about time you have not lived there, I think that is more to do with couples where only one is sole owner/on deeds etc. You both took out mortgage with lender and signed agreement, you are both liable for mortgage and unless a court says otherwise you are entitled to live there. Unless there was violence a court can even order that a couple live under the same roof with agreement on who uses certain parts of house until divorce. It then decides who has occupancy or is sold and so on. If the time frame was true how can people say go abroad for a few years and then return to their home?

You have legal right the same as she has unless she as a court order.

Regards Blue x

bluefairy wrote:

Hi Greengoblin

I have researched this and it seems same in Scotland as far as i can see. Check shelter website. It says that if you are joint owner and registered on deeds then you have joint occupancy rights unless a court orders otherwise - nothing about time you have not lived there, I think that is more to do with couples where only one is sole owner/on deeds etc. You both took out mortgage with lender and signed agreement, you are both liable for mortgage and unless a court says otherwise you are entitled to live there. Unless there was violence a court can even order that a couple live under the same roof with agreement on who uses certain parts of house until divorce. It then decides who has occupancy or is sold and so on. If the time frame was true how can people say go abroad for a few years and then return to their home?

You have legal right the same as she has unless she as a court order.

Regards Blue x

The law in Scotland is quite different to that in England/Wales, and care needs to be taken not to confuse the differing legislation in the two jurisdictions.

Shelter Scotland has their own, separate website from Shelter England, with the relevant information on housing law for Scotland.

As stated in my previous post, the 1981 MH Act (Scotland) (as amended by the 2006 FL Act(Scotland)) makes clear that after a period of 2 years of not occupying the MH, all occupancy rights are removed from that party.

Hi I did check scotland shelter and also scottish act 2006. The words ''non-entitled'' refer to a spouse who is not on the deeds as joint owner but greengoblin is co owner and on deeds so the 2 year gap is not applicable.

For example if his wife was sole owner but he lived there with her prior to separation then he would have rights based on matrimonial home act as the non-entitled spouse and could register a beneficial interest on the deeds. If he left and 2 years pass then he would lose these rights. But as he is also entitled (holding title on deeds because he signed joint mortgage contract) he is therefore co owner and entitled. Only a court order on divorce can prevent him from living there.

Blue x

In Scotland when someone doesn''t *live* in the matrimonial home and their spouse won''t let them move back in the correct procedure is to apply to the court for an order to enforce occupancy rights. It doesn''t matter who owns the property. Historically there was no time ­frame­, although recently it has been taken as two years. The court will weigh up the circumstances of the case and must take into account:

how the parties have behaved towards each other (for example, if the person applying for the order has been violent, the court is unlikely to grant an order enforcing their occupancy rights)

the needs of any children

the needs and financial situations of both parties and whether either uses the home in connection with their job or business



By not having lived in the property for a period of more than 2 years, he has rescinded his occupancy rights.

It''s the same as England & Wales really. When you move from the matrimonial home it can be difficult moving back and you can''t just force your way in without risking falling foul of other laws. If someone leaves the matrimonial home for a considerable time it''s no longer their home and their rights to occupy the property have to be balanced against the other spouse''s right for privacy and family life, their home and their correspondence. - Article 8 Human Rights Act 1998.