the Right to Stay in the Family Home During Divorce or Separation

In a marriage breakdown, Section 19 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981, provides specific powers to postpone or place conditions on the division and sale of a home, in order to protect a spouse’s right of occupation.

This protection is designed to ensure that decisions about selling the family home take account of fairness, need, and the welfare of any children involved – not just property rights.

What Section 19 Says

Section 19 applies where one spouse raises an action for division and sale of a matrimonial home owned in common (where each party has a distinct separate share of the property). Before granting decree (court order) for the sale of the property and division of the net free proceeds, the court must consider all the circumstances of the case, including:

1. The factors listed in Section 3(3) of the Act — these include:
   • The conduct of the spouses in relation to each other and to any children;
   • The needs, financial resources, and housing options of each spouse;
   • The likely impact of an order on any children of the family; and
   • The extent to which the home is used for family life or business purposes.
2. Whether the spouse seeking sale has offered or can offer suitable alternative accommodation to the other spouse.

After weighing up these factors, the court may:

• Refuse to grant decree of division and sale;
• Postpone the decree for such period as seems reasonable; or
• Grant decree subject to conditions, such as delaying sale until a child reaches a certain age or until alternative housing is secured.

The Court’s Balancing Exercise

The key purpose of Section 19 is to give the court flexibility where an immediate sale would cause undue hardship or disrupt the welfare of the family.
Typical considerations include:

• Whether the non-applying spouse or children would be left without suitable housing;
• The availability of alternative accommodation;
• The financial position of both parties;
• The length of occupation and attachment to the home.

This allows the court to strike a balance between property law (each owner’s right to realise their share) and family protection (ensuring housing stability during separation).

Practical Effect in Divorce and Separation Cases

In practice, Section 19 means that a spouse cannot automatically force a sale simply because they are a co-owner.
The sheriff may delay a sale to allow:

• The resident spouse time to secure new housing;
• Children to finish a school year; or
• Ongoing negotiations about financial settlement.

However, the postponement is not indefinite. The courts typically aim to reach a fair and workable solution within a reasonable period.

How we can help

Every separation and property dispute is unique. Before seeking or opposing division and sale, it is vital to obtain specialist family law advice.
A solicitor can help by:

• Assessing whether Section 19 arguments can delay or condition a sale;
• Presenting evidence of children’s needs or housing hardship;
• Negotiating buy-out arrangements;
• Coordinating Section 19 arguments with financial claims under the Family Law (Scotland) Act 1985.

Key Takeaways

• Section 19 protects spouses who might otherwise be forced out of the matrimonial home too soon.
• The court can refuse, delay, or attach conditions to a sale if fairness or welfare requires it.
• Suitable alternative accommodation and child welfare are central to the court’s decision.
• Legal representation ensures these protections are properly argued and evidenced.

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