Section 2 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 sets out the subsidiary and consequential rights that support and protect a spouse’s right to occupy the matrimonial home. This part of the legislation is particularly important where one spouse is not the legal owner or tenant of the property (known as the non-entitled spouse), but nevertheless has statutory occupancy rights.

These provisions aim to prevent one spouse from being unfairly disadvantaged simply because they are not named on the title deeds or lease agreement. They ensure both spouses can secure, maintain, and reasonably enjoy the matrimonial home and its furnishings.

Key Points of Section 2

1. Rights of the Non-Entitled Spouse

The Act allows the non-entitled spouse to take certain actions without needing the consent of the entitled spouse (the sole legal owner or sole tenant). These include:

• Paying housing costs – such as rent, mortgage instalments, loan interest, rates, and other essential outgoings (but not repairs or improvements).
• Performing obligations – taking on duties that the entitled spouse is legally responsible for, provided they do not involve non-essential repairs or improvements.
• Enforcing third-party obligations – for example, requiring a landlord, lender, or service provider to meet their contractual duties.
• Carrying out essential repairs – ensuring the property remains habitable and safe.
• Court-authorised non-essential repairs or improvements – where appropriate for the reasonable enjoyment of occupancy rights.
• Protecting occupancy rights – taking steps to secure the home in the same way the entitled spouse could.

2. Effect of Payments and Obligations

Any payments or obligations performed by the non-entitled spouse are treated in law as though they were made by the entitled spouse. This protects the spouse making the payment from losing out legally or financially.

3. Apportioning Expenditure

Either spouse can apply to the court to fairly divide the financial responsibilities connected with the matrimonial home. The court considers the financial circumstances of both parties when deciding who should contribute to housing costs, repairs, or improvements.

4. Where Both Spouses Are Entitled to Occupy

If both spouses are legally entitled to live in the property (for example, joint tenants or joint owners), the same principles apply:

• The court can authorise non-essential repairs or improvements.
• The court can apportion expenditure between spouses, again taking financial circumstances into account.

5. Furniture and Plenishings

The Act extends protection to household furniture and plenishings (such as essential furnishings and equipment). If one spouse owns or hires these items, the other spouse can:

• Make payments to secure their continued use (e.g. hire-purchase instalments).
• Carry out essential repairs.

The court can also apportion responsibility for these costs between the spouses.

6. Abandonment of Tenancy

If the entitled spouse is a tenant and abandons possession of the matrimonial home, the non-entitled spouse may continue the tenancy to preserve their right to remain in the home.

Why This Section Matters in Practice

Section 2 plays a crucial role in protecting vulnerable spouses, especially in situations where:

• One spouse is the sole legal owner or tenant, and the other risks losing their home.
• There are financial disputes about who should pay rent, mortgage instalments, or repair costs.
• A tenancy is at risk because one spouse has left the property.
• Essential household goods and furnishings are under hire-purchase or finance agreements.

By allowing the non-entitled spouse to step in and protect the home, the Act prevents one party from being left powerless or homeless simply because of how property or contracts are legally structured.

How the Courts Apply Section 2

When asked to make decisions under Section 2, the Scottish courts consider factors such as:

• Each spouse’s financial situation.
• The need to ensure fair sharing of responsibility.
• What is necessary for the “reasonable enjoyment” of the home.
• The long-term interests of both spouses and any children living in the property.

This judicial oversight ensures that rights are exercised fairly and not abused by either party.

Conclusion

Section 2 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 provides essential safeguards for spouses who are not the legal owners or tenants of the matrimonial home. It ensures they can contribute to housing costs, carry out essential works, and protect the family’s right to live in the home.

For anyone facing difficulties about occupancy rights, mortgage or rent payments, or disputes about household costs, this section of the Act can be highly relevant.

Need Expert Advice on Occupancy Rights in Scotland?

At XK Family Law Solicitors in Aberdeen, we specialise in helping clients understand and enforce their rights under the Matrimonial Homes (Family Protection) (Scotland) Act 1981. Whether you are the entitled spouse or the non-entitled spouse, we can provide clear legal advice tailored to your situation.

Contact us today for guidance on how Section 2 and related family law provisions apply to your case.

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