Following separation, many people are concerned about their occupancy rights, ie their right to remain in the matrimonial home.

•  What legal rights do married people have to remain in their family home?
• Do they have to move out if asked to do so by their spouse?
• What if the property is owned in their spouse’s sole name?

Do I have to move out of the property?

Where couples are married, a spouse is under no obligation to leave the matrimonial home and cannot be made to leave by the other. A court order would be required for this to happen.  For obvious reasons, courts are generally reluctant to exclude one party from the family home but may be persuaded to do so if it can be shown that there is likely to be harm caused to the other (or any children in the house) as a result of continuing joint occupation.  A spouse has occupancy rights to the family home regardless of whose name the title to the property is held in.

Can I force a sale of the property?

Generally speaking, it is not possible for a spouse, even if they are the sole owner of the matrimonial home, to sell the property without the agreement, in writing, of the other.  Jointly owned property requires both parties’ agreement to a sale, failing which, a court order.

The matrimonial home is rented – can I have the tenancy transferred to my sole name?

A tenancy in joint names can be transferred into the sole name of one party following separation.  This can be done by agreement or by order of the court.  The landlord’s consent to such a transfer is required in all cases.

If you are separating from your spouse, it is important to take legal advice as soon as practically possible to ensure that you are aware of your legal rights.  You can then consider your options carefully before making any major decisions.

TC Young have a depth of knowledge in their family team with over 30 years of family law experience in the Glasgow and Edinburgh offices – contact us if you’d like to discuss your separation or divorce in more detail.