Cohabiting couples in Scotland often assume that living together provides automatic rights over their shared home. However, occupancy rights are not automatic for cohabitants. Section 18 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 provides a legal guidance by which a non-entitled cohabitant may acquire a court-granted right to occupy, but only in limited circumstances.

What Section 18 Provides — Key Features

1. No automatic occupancy for cohabitants

Unlike spouses or civil partners, cohabitants do not enjoy automatic rights to remain in a home if they are not on the property title or lease. The law provides a remedy, but only if the non-entitled cohabitant applies to court.

2. Eligibility: “entitled” vs “non-entitled” cohabitant

• The entitled cohabitant is the person who is legally entitled (or permitted by a third party) to occupy the property.
• The non-entitled cohabitant is the person who lacks that entitlement (not on the lease or property title).

If the parties are residing together, a court may grant occupancy rights to the non-entitled partner.

3. Duration and extension of occupancy rights

• An initial order can run for up to six months.
• It is possible to extend that period by further orders, though each extension cannot exceed six months.

4. Court must consider all circumstances

In deciding whether the partners qualify as a cohabiting couple, and whether to grant the order, the court will consider factors including:

• Duration of cohabitation.
• Whether there is a child of the couple, or a child treated as theirs.
• The conduct, financial resources, needs of children, and fairness. (By applying the Act’s other sections to cohabitants while occupancy rights are in force.)

5. Limitations and protection of third-party rights

Section 18 explicitly preserves third-party rights (for example, creditors, mortgagees, or other legal interests) in the property.

Also, “house” is defined broadly to include structures such as caravans, houseboats, and associated land, where the couple live and use it.

Practical Considerations for Claimants (Non-Entitled Partners)

Timing of application

A cohabitant must make their application while the relationship is subsisting. One cannot normally obtain occupancy rights after after cohabitation has ceased and parties have moved on.

Evidence required

To succeed under Section 18, the applicant must persuade the court they meet the criteria of a cohabiting couple and satisfy the fairness of an occupancy grant. Useful evidence includes:

• Proof of shared residence and domestic arrangements;
• Financial contributions;
• Proof of children or dependents;
• Any prior behavior or conduct.

Possible defences by the entitled partner

The entitled partner may oppose the application on grounds such as:

• The applicant cannot prove cohabitation under the statutory meaning;
• The period of 12 months for claiming occupancy rights has passed;
• The property is subject to third-party rights;
• Alternative accommodation is available to the non-entitled partner;
• There are property ownership or title constraints.

Why This Law Matters, Risks Without an Order

• Without occupancy rights, a cohabitant may be vulnerable to ejection from a property, even where they contributed substantially to the home.
• An occupancy order ensures security of occupation for a limited time, enabling the non-entitled partner to seek permanent solutions.
• It helps manage fairness and stability, especially where children are involved.

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