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PART 3 continued CHAPTER 3 continued
(4) Pending the making of an order under subsection (3), the court, on the application of either partner, may make such interim order as it considers necessary or expedient in relation to—
(a) the residence of either partner in the home to which the application relates,
(b) the personal effects of either partner or of any child of the family, or
(c) the furniture and plenishings,
but an interim order may be made only if the non-applicant partner has been afforded an opportunity of being heard by or represented before the court.
(5) The court is not to make an order under subsection (3) or (4) if it appears that the effect of the order would be to exclude the non-applicant partner from the family home.
(6) If the court makes an order under subsection (3) or (4) which requires the delivery to one partner of anything which has been left in or removed from the family home, it may also grant a warrant authorising a messenger-at-arms or sheriff officer to enter the family home or other premises occupied by the other partner and to search for and take possession of the thing required to be delivered, (if need be by opening shut and lockfast places) and to deliver the thing in accordance with the order.
(7) A warrant granted under subsection (6) is to be executed only after expiry of such period as the court is to specify in the order for delivery.
(8) Where it appears to the court—
(a) on the application of a non-entitled partner, that the applicant has suffered a loss of occupancy rights or that the quality of the applicant’s occupation of a family home has been impaired, or
(b) on the application of a partner who has been given the possession or use of furniture and plenishings by virtue of an order under subsection (3), that the applicant has suffered a loss of such possession or use or that the quality of the applicant’s possession or use of the furniture and plenishings has been impaired,
in consequence of any act or default on the part of the other partner which was intended to result in such loss or impairment, it may order that other partner to pay to the applicant such compensation as it considers just and reasonable in respect of that loss or impairment.
(9) A partner may renounce in writing the right to apply under subsection (2) for the possession or use of any item of furniture and plenishings.
(1) Where there is an entitled and non-entitled partner, or where both partners are entitled, or permitted by a third party, to occupy a family home, either partner, whether or not that partner is in occupation at the time of the application, may apply to the court for an order (in this Chapter referred to as “an exclusion order”) suspending the occupancy rights of the other partner (“the non-applicant partner”) in a family home.
(2) Subject to subsection (3), the court is to make an exclusion order if it appears to it that to do so is necessary for the protection of the applicant or any child of the family from any conduct, or threatened or reasonably apprehended conduct, of the non-applicant partner which is or would be injurious to the physical or mental health of the applicant or child.
(3) The court is not to make an exclusion order if it appears to it that to do so would be unjustified or unreasonable—
(a) having regard to all the circumstances of the case including the matters specified in paragraphs (a) to (e) of section 103(3), and
(b) where the family home—
(i) is, or is part of, an agricultural holding within the meaning of section 1 of the Agricultural Holdings (Scotland) Act 1991 (c. 55), or
(ii) is let, or is a home in respect of which possession is given, to the non-applicant partner or to both partners by an employer as an incident of employment,
having regard to any requirement that the non-applicant partner, or, as the case may be, both partners must reside in the family home and to the likely consequences of the exclusion of the non-applicant partner from the family home.
(4) In making an exclusion order the court is, on the application of the applicant partner—
(a) to grant a warrant for the summary ejection of the non-applicant partner from the family home unless the non-applicant partner satisfies the court that it is unnecessary for it to grant such a remedy,
(b) to grant an interdict prohibiting the non-applicant partner from entering the family home without the express permission of the applicant, and
(c) to grant an interdict prohibiting the removal by the non-applicant partner, except with the written consent of the applicant or by a further order of the court, of any furniture and plenishings in the family home unless the non-applicant partner satisfies the court that it is unnecessary for it to grant such a remedy.
(5) In making an exclusion order the court may—
(a) grant an interdict prohibiting the non-applicant partner from entering or remaining in a specified area in the vicinity of the family home;
(b) where the warrant for the summary ejection of the non-applicant partner has been granted in that partner’s absence, give directions as to the preservation of that partner’s goods and effects which remain in the family home;
(c) on the application of either partner, make the exclusion order or the warrant or interdict mentioned in paragraph (a), (b) or (c) of subsection (4) or paragraph (a) of this subsection subject to such terms and conditions as the court may prescribe;
(d) on the application of either partner, make such other order as it considers necessary for the proper enforcement of an order made under subsection (4) or paragraph (a), (b) or (c).
(6) Pending the making of an exclusion order, the court may, on the application of the applicant partner, make an interim order suspending the occupancy rights of the non-applicant partner in the family home to which the application for the exclusion order relates; and subsections (4) and (5) apply to such an interim order as they apply to an exclusion order.
(7) But an interim order may be made only if the non-applicant partner has been afforded an opportunity of being heard by or represented before the court.
(8) Without prejudice to subsections (1) and (6), where both partners are entitled, or permitted by a third party, to occupy a family home, it is incompetent for one partner to bring an action of ejection from the family home against the other partner.
(1) The court may, on the application of either partner, vary or recall any order made by it under section 103 or 104.
(2) Subject to subsection (3), any such order, unless previously so varied or recalled, ceases to have effect—
(a) on the dissolution of the civil partnership,
(b) subject to section 106(1), where there is an entitled and non-entitled partner, on the entitled partner ceasing to be an entitled partner in respect of the family home to which the order relates, or
(c) where both partners are entitled, or permitted by a third party, to occupy the family home, on both partners ceasing to be so entitled or permitted.
(3) Without prejudice to the generality of subsection (2), an order under section 103(3) or (4) which grants the possession or use of furniture and plenishings ceases to have effect if the furniture and plenishings cease to be permitted by a third party to be retained in the family home.
(1) Subject to subsection (3)—
(a) the continued exercise of the rights conferred on a non-entitled partner by the provisions of this Chapter in respect of a family home are not prejudiced by reason only of any dealing of the entitled partner relating to that home, and
(b) a third party is not by reason only of such a dealing entitled to occupy that home or any part of it.
(2) In this section and section 107—
“dealing” includes the grant of a heritable security and the creation of a trust but does not include a conveyance under section 80 of the Lands Clauses Consolidation Act 1845 (c. 18);
“entitled partner” does not include a civil partner who, apart from the provisions of this Chapter—
is permitted by a third party to occupy a family home, or
is entitled to occupy a family home along with an individual who is not the other civil partner whether or not that individual has waived a right of occupation in favour of the civil partner so entitled,
(“non-entitled partner” being construed accordingly).
(3) This section does not apply in any case where—
(a) the non-entitled partner in writing either—
(i) consents or has consented to the dealing (any consent being in such form as the Scottish Ministers may, by regulations made by statutory instrument, prescribe), or
(ii) renounces or has renounced occupancy rights in relation to the family home or property to which the dealing relates,
(b) the court has made an order under section 107 dispensing with the consent of the non-entitled partner to the dealing,
(c) the dealing occurred, or implements a binding obligation entered into by the entitled partner, before the registration of the civil partnership,
(d) the dealing occurred, or implements a binding obligation entered into, before the commencement of this section,
(e) the dealing comprises a sale to a third party who has acted in good faith, if there is produced to the third party by the seller—
(i) an affidavit sworn or affirmed by the seller declaring that the subjects of sale are not, or were not at the time of the dealing, a family home in relation to which a civil partner of the seller has or had occupancy rights,
(ii) a renunciation of occupancy rights or consent to the dealing which bears to have been properly made or given by the non-entitled partner, or
(f) the entitled partner has permanently ceased to be entitled to occupy the family home, and at any time after that a continuous period of 5 years has elapsed during which the non-entitled partner has not occupied the family home.
(4) For the purposes of subsection (3)(e), the time of the dealing, in the case of the sale of an interest in heritable property, is the date of delivery to the purchaser of the deed transferring title to that interest.
(1) The court may, on the application of an entitled partner or any other person having an interest, make an order dispensing with the consent of a non-entitled partner to a dealing which has taken place or a proposed dealing, if—
(a) such consent is unreasonably withheld,
(b) such consent cannot be given by reason of physical or mental disability, or
(c) the non-entitled partner cannot be found after reasonable steps have been taken to trace that partner.
(2) For the purposes of subsection (1)(a), a non-entitled partner has unreasonably withheld consent to a dealing which has taken place or a proposed dealing, where it appears to the court either—
(a) that the non-entitled partner—
(i) has led the entitled partner to believe that the non-entitled partner would consent to the dealing, and
(ii) would not be prejudiced by any change in the circumstances of the case since the conduct which gave rise to that belief occurred, or
(b) that the entitled partner has, having taken all reasonable steps to do so, been unable to obtain an answer to a request for consent.
(3) The court, in considering whether to make an order under subsection (1), is to have regard to all the circumstances of the case including the matters specified in paragraphs (a) to (e) of section 103(3).
(4) Where—
(a) an application is made for an order under this section, and
(b) an action is or has been raised by a non-entitled partner to enforce occupancy rights,
the action is to be sisted until the conclusion of the proceedings on the application.
(1) The rights of a third party with an interest in the family home as a creditor under a secured loan in relation to the non-performance of any obligation under the loan are not prejudiced by reason only of the occupancy rights of the non-entitled partner; but where a non-entitled partner has or obtains occupation of a family home and—
(a) the entitled partner is not in occupation, and
(b) there is a third party with such an interest in the family home,
the court may, on the application of the third party, make an order requiring the non-entitled partner to make any payment due by the entitled partner in respect of the loan.
(2) This section does not apply to secured loans in respect of which the security was granted prior to the commencement of section 13 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73) unless the third party in granting the secured loan acted in good faith and there was produced to the third party by the entitled partner—
(a) an affidavit sworn or affirmed by the entitled partner declaring that there is no non-entitled partner, or
(b) a renunciation of occupancy rights or consent to the taking of the loan which bears to have been properly made or given by the non-entitled partner.
(3) This section does not apply to secured loans in respect of which the security was granted after the commencement of section 13 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73) unless the third party in granting the secured loan acted in good faith and there was produced to the third party by the grantor—
(a) an affidavit sworn or affirmed by the grantor declaring that the security subjects are not or were not at the time of the granting of the security a family home in relation to which a civil partner of the grantor has or had occupancy rights, or
(b) a renunciation of occupancy rights or consent to the granting of the security which bears to have been properly made or given by the non-entitled partner.
(4) For the purposes of subsections (2) and (3), the time of granting a security, in the case of a heritable security, is the date of delivery of the deed creating the security.
(1) Subject to subsection (2), where, apart from the provisions of this Chapter, both civil partners are entitled to occupy a family home—
(a) the rights in that home of one civil partner are not prejudiced by reason only of any dealing of the other civil partner, and
(b) a third party is not by reason only of such a dealing entitled to occupy that home or any part of it.
(2) Sections 106(3) and 107 and the definition of “dealing” in section 106(2) apply for the purposes of subsection (1) as they apply for the purposes of section 106(1) but subject to the following modifications—
(a) any reference to the entitled partner and to the non-entitled partner is to be construed as a reference to a civil partner who has entered into, or as the case may be proposes to enter into, a dealing and to the other civil partner respectively, and
(b) in paragraph (b) of section 107(4) the reference to occupancy rights is to be construed as a reference to any rights in the family home.
Where a civil partner brings an action for the division and sale of a family home owned in common with the other civil partner, the court, after having regard to all the circumstances of the case including—
(a) the matters specified in paragraphs (a) to (d) of section 103(3), and
(b) whether the civil partner bringing the action offers or has offered to make available to the other civil partner any suitable alternative accommodation,
may refuse to grant decree in that action or may postpone the granting of decree for such period as it considers reasonable in the circumstances or may grant decree subject to such conditions as it may prescribe.
(1) Where a family home as regards which there is an entitled partner and a non-entitled partner is adjudged, the Court of Session, on the application of the non-entitled partner made within 40 days after the date of the decree of adjudication, may—
(a) order the reduction of the decree, or
(b) make such order as it thinks appropriate to protect the occupancy rights of the non-entitled partner,
if satisfied that the purpose of the diligence was wholly or mainly to defeat the occupancy rights of the non-entitled partner.
(2) Section 106(2) applies in construing “entitled partner” and “non-entitled partner” for the purposes of subsection (1).
(1) The court may, on the application of a non-entitled partner, make an order transferring the tenancy of a family home to that partner and providing, subject to subsection (12), for the payment by the non-entitled partner to the entitled partner of such compensation as seems to it to be just and reasonable in all the circumstances of the case.
(2) In an action—
(a) for dissolution of a civil partnership, the Court of Session or the sheriff,
(b) for declarator of nullity of a civil partnership, the Court of Session,
may, on granting decree or within such period as the court may specify on granting decree, make an order granting an application under subsection (1).
(3) In determining whether to grant an application under subsection (1), the court is to have regard to all the circumstances of the case including the matters specified in paragraphs (a) to (e) of section 103(3) and the suitability of the applicant to become the tenant and the applicant’s capacity to perform the obligations under the lease of the family home.
(4) The non-entitled partner is to serve a copy of an application under subsection (1) on the landlord and, before making an order under subsection (1), the court is to give the landlord an opportunity of being heard by it.
(5) On the making of an order granting an application under subsection (1), the tenancy vests in the non-entitled partner without intimation to the landlord, subject to all the liabilities under the lease (other than liability for any arrears of rent for the period before the making of the order).
(6) The arrears mentioned in subsection (5) are to remain the liability of the original entitled partner.
(7) The clerk of court is to notify the landlord of the making of an order granting an application under subsection (1).
(8) It is not competent for a non-entitled partner to apply for an order under subsection (1) where the family home—
(a) is let to the entitled partner by the entitled partner’s employer as an incident of employment, and the lease is subject to a requirement that the entitled partner must reside there,
(b) is or is part of an agricultural holding,
(c) is on, or pertains to—
(i) a croft,
(ii) the subject of a cottar, or
(iii) the holding of a landholder or of a statutory small tenant,
(d) is let on a long lease, or
(e) is part of the tenancy land of a tenant-at-will.
(9) In subsection (8)—
“agricultural holding” has the same meaning as in section 1 of the Agricultural Holdings (Scotland) Act 1991 (c. 55),
“cottar” has the same meaning as in section 12(5) of the Crofters (Scotland) Act 1993 (c. 44),
“croft” has the same meaning as in that Act of 1993,
“holding”, in relation to a landholder and a statutory small tenant, “landholder” and “statutory small tenant” have the same meanings respectively as in sections 2(1), 2(2) and 32(1) of the Small Landholders (Scotland) Act 1911 (c. 49),
“long lease” has the same meaning as in section 28(1) of the Land Registration (Scotland) Act 1979 (c. 33), and
“tenant-at-will” has the same meaning as in section 20(8) of that Act of 1979.
(10) Where both civil partners are joint or common tenants of a family home, the court may, on the application of one of the civil partners, make an order vesting the tenancy in that civil partner solely and providing, subject to subsection (12), for the payment by the applicant to the other partner of such compensation as seems just and reasonable in the circumstances of the case.
(11) Subsections (2) to (9) apply for the purposes of an order under subsection (10) as they apply for the purposes of an order under subsection (1) but subject to the following modifications—
(a) in subsection (3), for “tenant” there is substituted “sole tenant”;
(b) in subsection (4), for “non-entitled” there is substituted “applicant”;
(c) in subsection (5), for “non-entitled” there is substituted “applicant”,
(d) in subsection (6), for “liability of the original entitled partner” there is substituted “joint and several liability of both partners”;
(e) in subsection (8)—
(i) for “a non-entitled” there is substituted “an applicant”,
(ii) for paragraph (a) there is substituted—
“(a) is let to both partners by their employer as an incident of employment, and the lease is subject to a requirement that both partners must reside there;”, and
(iii) paragraphs (c) and (e) are omitted.
(12) Where the family home is a Scottish secure tenancy within the meaning of the Housing (Scotland) Act 2001 (asp 10), no account is to be taken, in assessing the amount of any compensation to be awarded under subsection (1) or (10), of the loss, by virtue of the transfer of the tenancy of the home, of a right to purchase the home under Part 3 of the Housing (Scotland) Act 1987 (c. 26).
(1) It shall not be incompetent for the Court of Session or the sheriff to entertain an application by one civil partner in a civil partnership for a relevant interdict by reason only that the civil partners are living together in civil partnership.
(2) In subsection (1) and in section 114, “relevant interdict” means an interdict, including an interim interdict, which—
(a) restrains or prohibits any conduct of one civil partner towards the other civil partner or a child of the family, or
(b) prohibits a civil partner from entering or remaining in a family home or in a specified area in the vicinity of a family home.
(1) Subject to subsection (2), the court is, on the application of an applicant civil partner, to attach a power of arrest—
(a) to any relevant interdict which is ancillary to an exclusion order (including an interim order under section 104(6));
(b) to any other relevant interdict where the non-applicant civil partner has had the opportunity of being heard by or represented before the court, unless it appears to the court that in all the circumstances of the case such a power is unnecessary.
(2) The court may attach a power of arrest to an interdict by virtue of subsection (1) only if satisfied that attaching the power would not result in the non-applicant civil partner being subject, in relation to the interdict, to a power of arrest under both this Chapter and the Protection from Abuse (Scotland) Act 2001 (asp 14).
(3) A power of arrest attached to an interdict by virtue of subsection (1) does not have effect until such interdict together with the attached power of arrest is served on the non-applicant civil partner; and such a power of arrest, unless previously recalled, ceases to have effect upon the dissolution of the civil partnership.
(4) If, by virtue of subsection (1), a power of arrest is attached to an interdict, a constable may arrest without warrant the non-applicant civil partner if the constable has reasonable cause for suspecting that civil partner of being in breach of the interdict.
(5) If, by virtue of subsection (1), a power of arrest is attached to an interdict, the applicant civil partner is, as soon as possible after service of the interdict, to ensure that there is delivered—
(a) to the chief constable of the police area in which the family home is situated, and
(b) if the applicant civil partner resides in another police area, to the chief constable of that other police area,
a copy of the application for the interdict and of the interlocutor granting the interdict together with a certificate of service of the interdict and, where the application to attach the power of arrest to the interdict was made after the interdict was granted, a copy of that application and of the interlocutor granting it and a certificate of service of the interdict together with the attached power of arrest.
(6) Where any relevant interdict to which, by virtue of subsection (1), there is attached a power of arrest, is varied or recalled, the civil partner who applied for the variation or recall is to ensure that there is delivered—
(a) to the chief constable of the police area in which the family home is situated, and
(b) if the applicant civil partner resides in another police area, to the chief constable of that other police area,
a copy of the application for variation or recall and of the interlocutor granting the variation or recall.
(7) In this section and in sections 115 and 116—
“applicant civil partner” means the civil partner who has applied for the interdict, and
“non-applicant civil partner” is to be construed accordingly.
(1) Where a person has been arrested under section 114(4), the officer in charge of a police station may—
(a) if satisfied that there is no likelihood of violence to the applicant civil partner or any child of the family, liberate that person unconditionally, or
(b) refuse to liberate that person.
(2) For such refusal and the detention of that person until appearance in court by virtue of section 116(2) or of any provision of the Criminal Procedure (Scotland) Act 1975 (c. 21) the officer is not to be subjected to any claim whatsoever.
(3) Where a person arrested under section 114(4) is liberated under subsection (1), the facts and circumstances which gave rise to the arrest are to be reported forthwith to the procurator fiscal who, if he decides to take no criminal proceedings in respect of those facts and circumstances, is at the earliest opportunity to take all reasonable steps to intimate his decision to the persons mentioned in paragraphs (a) and (b) of section 116(5).
(1) The provisions of this section apply only where—
(a) the non-applicant civil partner has not been liberated under section 115(1), and
(b) the procurator fiscal decides that no criminal proceedings are to be taken in respect of the facts and circumstances which gave rise to the arrest.
(2) The non-applicant civil partner who has been arrested under section 114(4) is wherever practicable to be brought before the sheriff sitting as a court of summary criminal jurisdiction for the district in which that civil partner was arrested not later than in the course of the first day after the arrest, such day not being a Saturday, a Sunday or a court holiday prescribed for that court under section 8 of the Criminal Procedure (Scotland) Act 1995 (c. 46).
(3) Nothing in subsection (2) prevents the non-applicant civil partner being brought before the sheriff on a Saturday, a Sunday or such a court holiday when the sheriff is, in pursuance of that section of that Act, sitting for the disposal of criminal business.
(4) Subsections (1) to (3) of section 15 of that Act (intimation to a named person) apply to a non-applicant civil partner who has been arrested under section 114(4) as they apply to a person who has been arrested in respect of any offence.
(5) The procurator fiscal is at the earliest opportunity, and in any event prior to the non-applicant civil partner being brought before the sheriff under subsection (2), to take all reasonable steps to intimate—
(a) to the applicant civil partner, and
(b) to the solicitor who acted for that civil partner when the interdict was granted or to any other solicitor who the procurator fiscal has reason to believe acts for the time being for that civil partner,
that the criminal proceedings referred to in subsection (1) will not be taken.
(6) On the non-applicant civil partner being brought before the sheriff under subsection (2) (as read with subsection (3)), the following procedures apply—
(a) the procurator fiscal is to present to the court a petition containing—
(i) a statement of the particulars of the non-applicant civil partner,
(ii) a statement of the facts and circumstances which gave rise to the arrest, and
(iii) a request that the non-applicant civil partner be detained for a further period not exceeding 2 days,
(b) if it appears to the sheriff that—
(i) the statement referred to in paragraph (a)(ii) ostensibly discloses a breach of interdict by the non-applicant civil partner,
(ii) proceedings for breach of interdict will be taken, and
(iii) there is a substantial risk of violence by the non-applicant civil partner against the applicant civil partner or any child of the family,
he may order the non-applicant civil partner to be detained for a further period not exceeding 2 days, and
(c) in any case to which paragraph (b) does not apply, the non-applicant civil partner is, unless in custody in respect of any other matter, to be released from custody.
(7) In computing the period of 2 days referred to in paragraphs (a) and (b) of subsection (6), no account is to be taken of a Saturday or Sunday or of any holiday in the court in which the proceedings for breach of interdict will require to be raised.
(1) An action for the dissolution of a civil partnership may be brought in the Court of Session or in the sheriff court.
(2) In such an action the court may grant decree, if, but only if, it is established that—
(a) the civil partnership has broken down irretrievably, or
(b) an interim gender recognition certificate under the Gender Recognition Act 2004 (c. 7) has, after the date of registration of the civil partnership, been issued to either of the civil partners.
(3) The irretrievable breakdown of a civil partnership is taken to be established if—
(a) since the date of registration of the civil partnership the defender has at any time behaved (whether or not as a result of mental abnormality and whether such behaviour has been active or passive) in such a way that the pursuer cannot reasonably be expected to cohabit with the defender,
(b) the defender has wilfully and without reasonable cause deserted the pursuer and during a continuous period of two years immediately succeeding the defender’s desertion—
(i) there has been no cohabitation between the parties, and
(ii) the pursuer has not refused a genuine and reasonable offer by the defender to adhere,
(c) there has been no cohabitation between the civil partners at any time during a continuous period of two years after the date of registration of the civil partnership and immediately preceding the bringing of the action and the defender consents to the granting of decree of dissolution of the civil partnership, or
(d) there has been no cohabitation between the civil partners at any time during a continuous period of 5 years after that date and immediately preceding the bringing of the action.
(4) Provision is to be made by act of sederunt—
(a) for the purpose of ensuring that, in an action to which paragraph (c) of subsection (3) relates, the defender has been given such information as enables that civil partner to understand—
(i) the consequences of consenting to the granting of decree, and
(ii) the steps which must be taken to indicate such consent, and
(b) as to the manner in which the defender in such an action is to indicate such consent, and any withdrawal of such consent,
and where the defender has indicated (and not withdrawn) such consent in the prescribed manner, that indication is sufficient evidence of such consent.
(5) Provision is to be made by act of sederunt for the purpose of ensuring that, where in an action for the dissolution of a civil partnership the defender is suffering from mental illness, the court appoints a curator ad litem to the defender.
(6) In an action to which paragraph (d) of subsection (3) relates, even though irretrievable breakdown of the civil partnership is established the court is not bound to grant decree if in its opinion to do so would result in grave financial hardship to the defender.
(7) For the purposes of subsection (6), hardship includes the loss of the chance of acquiring any benefit.
(8) In an action for dissolution of a civil partnership the standard of proof required to establish the ground of action is on balance of probability.
Civil Partnership Act 2004