When a marriage breaks down, one of the most important practical questions is who gets to remain in the matrimonial home — especially when the property is rented rather than owned. Section 13 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 deals specifically with this issue by allowing the court to transfer the tenancy of a matrimonial home from one spouse to the other in certain circumstances.
As Family Law Solicitors in Aberdeen, we are often asked about a spouse’s right to stay in a rented property after separation or divorce. This article explains what Section 13 means, how the process works, and what the court considers before transferring a tenancy.
1. The Purpose of Section 13 – Protecting the Non-Entitled Spouse
Under Scottish law, the “entitled spouse” is the person who holds legal rights to occupy a property — in this case, the tenant named on the lease. The “non-entitled spouse” is the other partner who has occupancy rights but whose name may not appear on the tenancy agreement.
Section 13 allows a non-entitled spouse to apply to the court to transfer the tenancy of the matrimonial home into their name. This is a vital protection where, for example, a husband or wife has been living in the home but the tenancy is in the other’s name, and the relationship has broken down.
The court can also order the non-entitled spouse to pay compensation to the original tenant if that is considered fair and reasonable.
2. When the Court Can Grant a Transfer
Section 13(2) provides that the Court of Session or the Sheriff Court can make such an order during or shortly after a divorce or nullity action.
The court’s decision will depend on several factors set out in Section 3(3) of the Act, such as:
- The needs and resources of each spouse.
- The needs of any children.
- The conduct of the parties (if relevant).
- The nature and reasonableness of the application.
- Any alternative accommodation available.
The court will also consider the suitability of the applicant to become the tenant and their capacity to meet the lease obligations, such as paying rent or maintaining the property.
3. Involvement of the Landlord
The law ensures that the landlord’s interests are protected. Before granting an order, the non-entitled spouse must serve a copy of their application on the landlord, who must be given an opportunity to be heard.
If the court decides to transfer the tenancy, the tenancy vests automatically in the non-entitled spouse, without any need for a new lease or the landlord’s formal consent. However, the new tenant becomes liable for all future rent and obligations under the lease — though any arrears accrued before the transfer remain the responsibility of the original tenant.
The clerk of court is required to notify the landlord once the order has been made.
4. When a Transfer Cannot Be Ordered
There are certain types of tenancy where a transfer under Section 13 is not allowed. These include:
- Accommodation provided by an employer as part of a job (where residence is a condition of employment).
- Property connected with agricultural or crofting tenancies, or statutory smallholdings.
- Long leases or tenancies-at-will.
The definitions of these tenancy types are drawn from related legislation such as the Crofters (Scotland) Act 1955, the Small Landholders (Scotland) Act 1911, and the Land Registration etc. (Scotland) Act 2012.
These restrictions exist because such tenancies are tied to specific employment or landholding rights, which cannot easily be separated or transferred.
5. Transfers Where Both Spouses Are Joint Tenants
Where both spouses are joint or common tenants, Section 13(9) gives the court the power to vest the tenancy in one spouse alone. This means the lease can be transferred from joint names into a single name, again with the possibility of compensation to the other spouse.
The same procedural rules apply: the landlord must be informed, and the court must consider the suitability and financial capability of the applicant.
6. Practical Effect and Importance
Section 13 is an essential safeguard in situations where one spouse might otherwise be left without a home after separation. It ensures that occupancy rights can be made permanent by transferring the tenancy itself, providing stability and continuity, particularly for families with children.
It also strikes a balance by:
- Protecting landlords from financial loss or breach of lease terms;
- Ensuring compensation is fair; and
- Maintaining consistency with the rest of the 1981 Act, which aims to protect the family home as a place of security.
7. Related Legal Protections
For a deeper understanding of connected rights and protections, you may wish to read our related guides:
- Right of Spouse Without Title to Occupy the Matrimonial Home
- Occupancy Rights in Scotland After a Sale or Transfer of a Property
- Home Exclusion Orders in Scotland
These articles explain the broader context of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 and how it safeguards a spouse’s right to remain in the home even where they do not hold legal title or tenancy.
8. Conclusion
Section 13 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 offers powerful protection for non-entitled spouses by allowing the court to transfer a tenancy when fairness and practicality require it. It helps ensure that separation or divorce does not automatically mean homelessness for a spouse who has built their life in the matrimonial home.
If you need advice about tenancy transfers, occupancy rights, or matrimonial property, our team of Family Law Solicitors in Aberdeen at XK Family Law Solicitors can provide clear, practical guidance tailored to your circumstances.
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Our website articles are not legal advice. We accept no responsibility for use of this information.
For advice on your specific circumstances, contact XK Family Law Solicitors Aberdeen directly.