Section 6 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 regulates what happens to a non-entitled spouse’s occupancy rights when the “entitled spouse” carries out a dealing with the matrimonial home, such as a sale, transfer, mortgage change, statutory pledge, or creation of a trust.
It is one of the central protections in Scottish family law, ensuring one spouse cannot unilaterally dispose of, burden, or transfer rights in the matrimonial home in a way that undermines the other spouse’s right to remain there.
1. The Core Principle: Dealing Does Not Remove Occupancy Rights (s.6(1))
Under section 6(1):
(a) The non-entitled spouse’s occupancy rights continue despite a dealing.
If the entitled spouse sells, transfers, mortgages or otherwise deals with the home, the non-entitled spouse does not lose their occupancy rights solely because of that dealing.
(b) Third parties cannot automatically take possession
If the entitled spouse purports to transfer ownership or occupation to a third party, that third party does not automatically gain the right to live in the home simply because of the dealing.
This preserves the non-entitled spouse’s statutory rights in circumstances where the house might otherwise be put at risk.
2. Exception for Good-Faith Purchasers for Value (Inserted s.6(1A))
Section 6(1A) introduces an exception:
If a third party:
- acquires the home in good faith,
- for value, and
- from someone other than the entitled spouse,
then the non-entitled spouse cannot exercise occupancy rights against them.
This protects innocent purchasers who rely on the accuracy of the title sheet and do not know about the spouse’s occupancy rights.
This exception is tightly limited and typically arises only in indirect transfer cases (e.g., sale by insolvency practitioner, trustee, or disponer who is not the spouse).
3. Definition of “Dealing” (s.6(2))
“Dealing” includes:
- Granting a heritable security (e.g., mortgage)
- Granting a statutory pledge (introduced by the Moveable Transactions (Scotland) Act 2023)
- Creation of a trust affecting the home
It excludes compulsory acquisition under the Lands Clauses Consolidation (Scotland) Act 1845.
4. When Section 6 Does Not Apply (s.6(3))
Section 6 contains several important exceptions where the protection of occupancy rights will not operate. These include where:
(a) The non-entitled spouse has consented in writing
Consent must be in a prescribed statutory form .
(b) The non-entitled spouse has renounced occupancy rights
Renunciation must also be written and in prescribed form (and notarised).
(c) The court dispenses with consent (s.7 order)
A spouse who wants to sell or burden the home but cannot obtain consent may apply under section 7 to have consent dispensed with.
(d) The dealing implements a pre-marriage obligation
If a sale or security is carrying out a binding agreement made before the marriage, occupancy rights do not interfere.
(e) A good-faith purchaser is shown a statutory declaration
A third party is protected if shown:
- a written declaration that the property is not a matrimonial home, or
- a renunciation or consent from the non-entitled spouse.
This is commonly used in conveyancing to protect buyers and lenders.
(f) Abandonment of occupancy rights for 2+ years
If:
- the entitled spouse has permanently ceased to be entitled to occupy; and
- the non-entitled spouse has not lived in the home for two continuous years,
then occupancy rights fall away.
5. Registration Provisions (s.6(4))
Section 6 ensures that a non-entitled spouse’s occupancy rights operate as an overriding interest for land registration purposes (Land Registration (Scotland) Act 1979, now updated by the 2012 Act).
The effect:
- A spouse’s occupancy rights bind third parties,
- even if not registered,
- unless a statutory exception applies.
This was introduced to prevent dealings “behind the back” of the non-entitled spouse.
6. Why Section 6 Matters in Practice
Section 6 ensures that:
- A spouse cannot be evicted or left homeless by unilateral dealings.
- A lender cannot automatically eject a non-entitled spouse unless proper consent procedures were followed.
- Purchasing solicitors must make careful occupancy-rights enquiries.
- Third parties act at their own risk unless they obtain:
- written consent;
- renunciation; or
- the required statutory declaration.
The protections in Section 6 are a key part of Scottish domestic property law safeguarding spouses (and, under later amendments, civil partners) from financial or housing vulnerability.
7. How Cohabitants Differ
Cohabitants do not receive automatic occupancy rights under the 1981 Act.
They must:
- apply for occupancy rights, or
- rely on interdicts/exclusion orders where appropriate.
Guide:
XK Family Law Solicitors Aberdeen – Occupancy Rights; and Occupancy right 2
8. Related XK Family Law Solicitors Aberdeen – Reading Room Articles
For context, readers may also find useful:
Conclusion
Section 6 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 is a cornerstone protection ensuring that a non-entitled spouse’s occupancy rights cannot be casually defeated by sales, mortgages, transfers, or other dealings by the entitled spouse.
It balances two important interests:
- protecting spouses from homelessness or dispossession; and
- safeguarding third parties and lenders through clearly defined exceptions and formal consent mechanisms.
This framework remains highly relevant in modern Scottish property and family law practice, especially in conveyancing, separation, and disputes involving occupancy of the family home.
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For advice on your specific circumstances, contact XK Family Law Solicitors Aberdeen directly.