Section 1 Matrimonial Homes (Family Protection) (Scotland) Act 1981 explains a non-entitled spouse’s occupancy rights.

The idea behind Section 1

Section 1 creates automatic “occupancy rights” for a non-entitled spouse (the spouse who doesn’t hold the title/tenancy or permission to occupy) in a matrimonial home. In short, if your spouse is the sole owner or sole contracted tenant, a non-entitled spouse will still have the statutory right (acquired under this section) to continue living there at that home. If you’ve left the home, the right to re-enter and live there, subject to the rest of the Act and any court order.

Who’s who: “entitled” vs “non-entitled” spouse

• Entitled spouse: the spouse who is legally entitled or permitted by a third party (e.g., landlord) to occupy the matrimonial home. However, if the entitled spouse’s right is shared with someone who isn’t their spouse, Section 1 treats the entitled spouse as “entitled” only if that other individual waives their own right of occupation in the spouse’s favour.
• Non-entitled spouse: the other spouse, who lacks that title/permission but gains statutory occupancy rights under Section 1. The Act is about occupation, not ownership; ownership can be dealt with later under financial provision rules if relevant.

What exactly are the “occupancy rights”?

Section 1(1) grants the non-entitled spouse two core rights, collectively called occupancy rights:

1. If already living there: a right to continue to occupy the matrimonial home.
2. If not in occupation: a right to enter and occupy the matrimonial home.

These rights explicitly include living there with any “child of the family” (added to remove any doubt). If the entitled spouse thinks this is being abused (e.g., inappropriate third parties), the remedy is to ask the court to regulate the rights.

Practical note: If the entitled spouse refuses you entry, you must seek leave of the court, typically via a Section 3 application for orders declaring and/or enforcing occupancy rights.

Key limits and safeguards built into Section 1

1) Court decides where entry is refused

If the entitled spouse blocks your Section 1(1)(b) right to enter and occupy, you need court leave under Section 3(3) or (4) before moving back in. The court can declare, regulate, restrict or enforce occupancy rights and can attach protection such as interdicts and (in some cases) powers of arrest.

2) Renouncing occupancy rights — tightly controlled

A non-entitled spouse can renounce occupancy rights only in writing, and only (a) for a specified matrimonial home, or (b) for a specific property intended to become the matrimonial home. The renunciation has legal effect only if at the time it’s signed the spouse swore or affirmed before a notary public that it was made freely and without coercion. If signed abroad, “notary public” includes someone lawfully authorised there to take oaths/affirmations. This is deliberately strict to prevent pressured “sign-aways”.

3) The two-year lapse (separation without occupation)

If there has been no cohabitation between the spouses for a continuous period of two years and the non-entitled spouse has not occupied the matrimonial home during that period, occupancy rights cease at the end of the two years. Once they cease on this ground, the non-entitled spouse cannot apply for a fresh Section 3(1) order. (This two-year rule was introduced by later reforms and is now the settled position).

What counts as a “matrimonial home”?

In essence, the home provided or made available by one or both spouses for them to live in together as the family home (and places that have become the family home). The definition is important because Section 1 rights attach only if the property is a matrimonial home.

Sales, “dealings” and third parties — do occupancy rights survive?

Yes—for as long as the rights subsist, they can bind dealings by the entitled spouse. Examples:

• A sale without the non-entitled spouse’s consent won’t give the buyer vacant possession while occupancy rights subsist; the buyer cannot lawfully move in against the non-entitled spouse.
• Lettings, taking in lodgers or similar dealings by the entitled spouse don’t displace existing occupancy rights.

(There are technicalities and exceptions; in practice, conveyancers check whether any non-entitled spouse’s rights subsist before completion.)

How Section 1 works day-to-day (illustrations)

• Sole-owner marriage: Only A is on the title. B (non-entitled spouse) can stay and, if B has moved out, can ask the court for leave to re-enter if A blocks access. Renunciation requires a notarised statement of free will to be effective.
• Entitled with a third party: A shares occupation rights with a third party (not B). A counts as “entitled” only if that third party has waived their own right of occupation in A’s favour.
• Long separation: No cohabitation for 2 years or more and B hasn’t lived in the home during that period → B’s rights expire at the two-year mark; no fresh Section 3 application is competent after expiry.

How the courts help in practice

• Declare/Enforce: If your spouse disputes you have occupancy rights, the sheriff court can declare them and enforce them (e.g., access, keys).
• Regulate/Restrict: The court can set practical rules—who lives there, temporary arrangements, who pays what.
• Exclude: In abuse situations the court may grant an exclusion order suspending the abuser’s right of occupancy (separate from ownership). Powers of arrest can attach to related interdicts.

Relationship to civil partners & cohabitants (at a glance)

• Civil partners enjoy equivalent rights under later legislation.
• Cohabitants do not get automatic occupancy rights; they must apply under the statutory cohabitation route (normally up to six months at a time, extendable). If that’s your situation, get advice urgently.

FAQs

Do occupancy rights end on divorce?
Occupancy rights are tied to the status of spouse and generally end when the marriage ends.

Can my spouse sell the home over my head?
A sale without your consent doesn’t automatically give the buyer a right to move in while your occupancy rights subsist. This is why buyers’ solicitors check for subsisting rights.

What is a valid renunciation?
It must be written, property-specific, and accompanied by a sworn/affirmed statement before a notary Public and made freely and without coercion.

We’ve lived apart for nearly two years—should I move back to preserve my rights?
Section 1 has a two-year “no cohabitation and no occupation” expiry rule. Get advice quickly about timing and the possibility of court orders under Section 3 to declare/regulate rights if appropriate.

How our Aberdeen family law team can help

We regularly act for entitled and non-entitled spouses in disputes over the family home. We can:

• Declare/enforce occupancy rights and obtain urgent court orders where needed;
• Advise on renunciation (including arranging the required notarial sworn/affirmed statement);
• Protect your position around sales/lettings and dealings with lenders;

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