Matrimonial
Homes (Family Protection) (
8.1 Introduction
The Matrimonial Homes (Family Protection) (Scotland) Act 1981 gave spouses certain rights in their matrimonial home. The underlying principle of the Act is that, where one spouse is the owner or tenant of the home in which the couple normally live, the other spouse will have the right to occupy that home and to remain in occupation, notwithstanding the actions of the owner/tenant spouse. This right arises ex lege (by operation of law) as an incident of the marriage, and the non-owning spouse does not require to take any action to constitute the right. However, it should be noted that such a right is merely a right to occupy; it is does not confer any heritable right or title on the spouse.
The 1981 Act gave the courts powers to regulate the occupation of a matrimonial home, e.g. by excluding one of the spouses from the home and – where necessary – by granting powers to the police to arrest a spouse who may be in breach of a Court Order.
The Act is designed primarily to protect the rights of a person who is married to the owner or tenant. There is limited provision for the courts to protect the rights of an unmarried cohabiting partner of the owner or tenant where ‘a man and a woman are living with each other as if they were man and wife or two persons of the same sex are living together as if they were civil partners’ (Section 18). However, these limited rights do not affect the operation of the Land Register. The Keeper’s concern is, therefore, restricted to those rights which apply to married couples (for civil partners see Civil Partnership Act).
8.2.1 Entitled/non-entitled spouse
An entitled spouse is the wife or husband who owns the property (or is the named tenant of it) and who, therefore, has the right to occupy his/her own property.
A non-entitled spouse is the marriage partner of the person who owns or tenants the property, but does not hold title jointly with the entitled spouse. The non-entitled spouse has the right to occupy the matrimonial home.
The term ‘entitled’ is not necessarily synonymous with having a recorded or registered title. A person may become entitled if they have a heritable right to the interest, whether completed by infeftment or not. Where a person’s entitlement derives from or is terminated by an ordinary conveyance, the date on which that person becomes or ceases to be ‘entitled’ for the purposes of the 1981 Act is taken to be the date of entry.
The definition of matrimonial home can be found in section 22 of the 1981 Act. A ‘house, caravan, houseboat or other structure’ may become a matrimonial home if it ‘has been provided or has been made available by one or both of the spouses as, or has become, a family residence’. Thus it is possible for a married person to own residential property without it being classed as a matrimonial home; the question of whether a property falls within the definition depends on the actions and intentions of the parties. Equally, it may be possible for a married couple to have more than one matrimonial home.
The definition in section 22 includes ‘any garden or other ground or building attached to, and usually occupied with, or otherwise required for the amenity or convenience of, the house etc.’ This means that an occupancy right covers any garden, garage or other adjunct to the house as well as the house itself. In deciding whether such an adjunct falls within the definition, the main criterion will be whether the subjects could be regarded as ‘usually occupied with or otherwise required for the amenity of the house’. For example, a farm may be considered a matrimonial home, but farm fields would not fall within the definition if they were sufficiently remote that they did not form part of the ground ‘usually occupied with’ the house. Similarly, in the case of a garage which was some distance from the house, it might be reasonable to assume that it did not fall within the definition, whereas a garage which is adjacent to the house clearly would fall within the definition.
The definition of a matrimonial home for the purposes of the 1981 Act is amended by the Family Law (Scotland) Act 2006. The effect of the amendment is to extend the exclusions from the definition of matrimonial home:
The first additional exclusion is in the case of a home that is provided for separate living where that provision is made by a third party, rather than by a spouse - this will no longer be capable of being a matrimonial home; This may best be explained by way of examples where A and B are spouses.
(i) A acquires a house in which A will live separately from B
(ii) A acquires a house for B in which B will live separately from A
(iii) Third party acquires a house for A to live in separately from B.
In these examples the property would not be classed as a matrimonial home even though A and B are still married; in the event of a sale in examples (i) and (ii) the appropriate evidence is a written declaration or affidavit by A rather than a consent or renunciation from B. In example (iii) the third party who owns the house should grant the written declaration.
There is a further exclusion
that affects tenancies however this is not of concern to the Keeper as it affects
leasehold interests that are not registerable.
8.3 Dealings by the entitled spouse
In terms of Section 1 of the 1981 Act, the non-entitled spouse has the right to occupy the matrimonial home for as long as the entitled spouse remains entitled to the property, unless there has been no cohabitation between an entitled spouse and a non-entitled spouse during a continuous period of 2 years, and during that period the non-entitled spouse has not occupied the matrimonial home, in which case the occupancy right ceases (s.1(7) of the 1981 Act as introduced by the Family Law (Scotland) Act 2006).
Section 6 of the 1981 Act provides that the occupancy right of the non-entitled spouse shall not be prejudiced by a dealing of the entitled spouse. The term ‘dealing’ is not defined exhaustively; it includes the grant of a standard security and the creation of a trust, and clearly it must also include any transaction whereby the entitled spouse voluntarily transfers title or ownership to another party. Even the grant of a servitude could prejudice an occupancy right.
In other words, the non-entitled spouse may remain in occupation if the entitled spouse voluntarily transfers title to a third party. In addition, if the entitled spouse enters into a dealing which does not of itself transfer the title but leads to a subsequent transfer (e.g. the grant of a standard security which leads to a disposition in exercise of the creditor’s power of sale), the non-entitled spouse retains his or her occupancy right.
However, the protection afforded by section 6 will not apply in any of the following circumstances:
• where the non-entitled spouse has consented to the dealing or renounced his or her occupancy right (Transfers of title).
• where the entitled spouse is entitled to occupy along with an individual who is not the non-entitled spouse (e.g. where the ownership is held jointly by two or more persons who are not married to each other).
• where the transaction occurred, or implements, a binding obligation entered into by the entitled spouse before the marriage took place. A letter from the solicitor (or a statement on the application form), confirming that that is the case, is sufficient evidence for the Keeper’s purposes.
• where the dealing occurred or implements a binding obligation entered into before the commencement of the Act on 1 September 1982.
• where the circumstances described in Transfers of title apply.
It also seems that the term ‘dealing’ only includes the voluntary acts of the entitled spouse. The definition excludes a schedule conveyance under the Lands Clauses Consolidation (Scotland) Act 1845. By implication, it would also exclude a sale by the owner’s trustee in sequestration (but see Disposal of bankrupt’s family home).
The protection previously afforded to a dealing comprising a sale to a third party who has acted in good faith is now extended to cover all transfers for value, not just sales (eg excambions are now included). It still does not extend to cover gifts or transfers other than for value.
Under section 6(3)(e) of the 1981 Act (as amended by the Family Law (Scotland) Act 2006), a transferee for value is protected against the possibility that an occupancy right of a non-entitled spouse of the transferor still exists, if the transferee is given and accepts one of the following documents in good faith:
• a written declaration by the transferor (or a person acting on behalf of the transferor under a power of attorney or as a guardian), declaring that the subjects of the transfer are not (or were not at the time of the dealing) a matrimonial home in respect of which a spouse of the transferor has or had occupancy rights. There is no requirement that the written declaration be contained in a separate document: it can be included within a disposition; nor is there any requirement that the written declaration be sworn before a Notary Public (equally there is no prohibition on this), or even that it be witnessed (although clearly if it is contained within a disposition it will be witnessed). Note that given the terms of the statute the Keeper does not require that a written declaration be self-proving for the Land Register therefore he will not object to a written declaration on the grounds that it is not witnessed. The declaration will however require to be witnessed if it is to acquire self-proving status and be recorded in the Books of Council and Session. It is the appropriate evidence where the transferor is unmarried, but it would also be appropriate if the transferor is married but the property does not fall within the definition of ‘matrimonial home’ or the occupancy rights have prescribed in terms of s.1(7) of the 1981 Act.
• a consent by the non-entitled spouse (or a person acting on behalf of the non-entitled spouse under a power of attorney or as a guardian), either in gremio of the disposition or in a separate document. In either case, the consent must conform to the style in the Matrimonial Homes (Form of Consent) (Scotland) Regulations 1982 (SI 1982 No. 971).
• a renunciation by the non-entitled spouse (or a person acting on behalf of the non-entitled spouse under a power of attorney or as a guardian) of his or her occupancy rights in the property, as permitted by section 1(5) of the 1981 Act. The renunciation must be sworn in front of a Notary Public, and must be made freely and without coercion. (Renunciations executed prior to 1 Dec. 2003 are subject to £5 stamp duty, while those executed after that date are not subject to SDLT and no SDLT certificate is required).
8.5 Dealings where both spouses have title
Section 6 applies where one of the spouses is entitled and the other is not. Where both spouses are entitled to the property, Section 9 protects each spouse against the consequences of dealings by the other. It provides that a dealing entered into by one spouse shall not prejudice the occupancy rights of the other spouse, and that a third party shall not be able to occupy any part of the matrimonial home on the strength of a dealing by one spouse alone. Where both spouses have title, a dealing by one spouse in relation to that spouse’s share will therefore require to be supported by the consent of the other spouse.
8.6.1
General
In terms of rule 5(j) of the Land Registration (Scotland) Rules 1980 (as amended),
the Keeper is required to insert in the proprietorship section of each title
sheet a statement as to whether or not there are any subsisting occupancy rights
of spouses of former proprietors.
The occupancy right of a non-entitled spouse, within the meaning of section 6 of the 1981 Act, is included within the definition of overriding interest in section 28(1)(gg) of the 1979 Act. Although classed as an overriding interest, the right is one of the exceptions to the noting provisions contained in section 6(4) of the 1979 Act. It is, therefore, not capable of being noted on the title sheet. It does not follow, however, that occupancy rights are of no relevance in land registration.
To ensure vacant possession, a transferee must establish if an occupancy right of a non-entitled spouse subsists (the extent to which he needs to do so will be determined by whether he is a transferee for value, or not). Since a title sheet discloses only the current registered proprietor, it is not possible to identify from it details of former proprietors. To avoid the need to retain and refer to a progress of titles for that purpose after registration, rule 5 (j) requires the Keeper, if he is satisfied that there are no such subsisting rights, to insert in the proprietorship section of the title sheet a statement to that effect, e.g.:
Note: There are in respect of the subjects in this Title no subsisting occupancy rights, in terms of the Matrimonial Homes (Family Protection) (Scotland) Act 1981, of spouses of persons who were formerly entitled to the said subjects.
This is available on the LRS pick list and is known as the MH1 note.
Where the Keeper is not satisfied, then one of the other appropriate notes from the pick list will be inserted. For example:
Note: The Keeper is satisfied that there are in respect of the subjects in this title no subsisting occupancy rights in terms of the Matrimonial Homes (Family Protection) (Scotland) Act 1981, of spouses of persons who were formerly entitled to the said subjects, except AB (design), who ceased to be entitled on [date of entry] and in respect of whose entitlement no evidence of the non-existence of an occupancy right has been produced to the Keeper
Such a qualified note is known as a MH2 note.
A qualified statement entered in a title sheet under rule 5(j) is not an exclusion of indemnity, as the existence or not of an occupancy right only affects the right to vacant possession and does not affect title. Such a qualified statement indicates that sufficient evidence of the absence of occupancy rights has not been produced to the Keeper. It does not necessarily imply that an occupancy right exists.
Although an occupancy right is an overriding interest, section 12(3)(h) of the 1979 Act does not apply to a statement in terms of rule 5(j), so the full indemnity provisions apply to such a statement. Where sections 6(3)(e) and 8 of the 1981 Act have not operated (see the immediately succeeding paragraph), and the consent etc. is not valid, the occupancy right may prevail over that of the transferee in the dealing. In such an event an unqualified statement in terms of rule 5(j) may allow the registered proprietor a claim for indemnity against the Keeper.
Since rule 5(j) refers only to ‘persons who were formerly entitled to the interest in land’, the Keeper considers that occupancy rights of spouses of persons permitted by the proprietor to occupy the home, for example, a tenant under a short lease, or a beneficiary under a trust which directs the trustees to hold the subjects on the beneficiary’s behalf, are excluded.
For property which cannot fall within the definition of matrimonial home (e.g. commercial or industrial premises), the Keeper will therefore include no note in the title sheet with regard to occupancy rights. However, where a registration officer is dealing with an application submitted before 22 January 2007 (after which more reliance will be placed upon the certification made by the applicant-see Applications submitted on or after 22 January 2007) they should bear in mind that ostensibly commercial or industrial property may include residential accommodation (e.g. a caretaker’s flat), or that it may subsequently be redeveloped for residential use. In such circumstances, the absence of a note might give rise to complications for future proprietors. Settlers should not, however, insert the MH1 note unless they have seen sufficient evidence or, in respect of applications submitted on or after 22 January 2007, they are satisfied from the certifications made by the applicant, that there are no subsisting occupancy rights.
8.6.2
Applications submitted before 22 January 2007
For applications submitted before 22 January 2007, the Keeper will insert an
MH1 note only if an application for registration is supported by evidence
(see Examination of Evidence- Applications submitted before
22 January 2007) that no occupancy rights of spouses of former proprietors
exist. If he is not satisfied, then one of the other appropriate notes from
the pick list will be inserted.
8.6.3 Applications submitted on or after 22 January 2007
For applications submitted on and after 22 January 2007, applicants are required
to provide certain confirmations pertaining to occupancy rights of a non-entitled
spouse or civil partner of the registered proprietor on application forms 1,
2 and 3, as introduced by the Land Registration (Scotland) Rules 2006. Registration
officers will no longer examine evidence pertaining to occupancy rights but
will, in most cases, act in accordance with the information certified by the
applicant on the application forms- see Examination
of application submitted on or after 22 January 2007. to 8.24
8.7 Examination of evidence - Where application submitted before 22 January 2007
First registration
In the application
forms in use prior to 22 January 2007, in relation to a first registration,
the applicant’s agents are required to certify (in answer to question
9 on Form 1) whether they have submitted for examination all the necessary affidavits,
consents and renunciations in terms of section 6 of the 1981 Act. Although no
reference is made to written declarations, the question may be read to include
these where a written declaration is submitted.
In relation to a dealing on transfer of title, the applicant’s agents are
required to certify (in answer to question 5 on Form 2) whether they have submitted
all the necessary affidavits, consents and renunciations in terms of section
6 of the 1981 Act. Again note that the current (May 2006) application form 2
does not refer to written declarations but may be read to include these where
written declaration is submitted. The application forms will be amended in late
2006 and the appropriate wording will be included then.
In relation to a
transfer of part, the equivalent question 7 on form 3 should be answered. Again
note that the current (May 2006) application form 3 does not refer to written
declarations but may be read to include these where written declaration is submitted.
The application forms will be amended in late 2006 and the appropriate wording
will be included then.
In both dealing with whole and transfer of part cases, if the question is answered in the affirmative, the settler should examine the matrimonial homes evidence in respect of the proprietor disclosed in the title sheet and any person, other than the applicant, who has subsequently been entitled to the interest (unless the applicant is a person who acquires the matrimonial home, or an interest in it, in good faith and for value from a person who derived title from the proprietor disclosed in the title sheet or someone who derives title from such a person, in which case only the matrimonial homes documentation in respect of the last transfer requires to be examined).
The matrimonial homes note regarding occupancy rights under the 1981 Act is entered in the title sheet in respect of persons who were formerly entitled to the subjects. The Keeper gives no such assurances in respect of the current registered proprietor and consequently does not require sight of any documentary evidence for the applicant. It follows, therefore, that when applying to register a dealing that is not a transfer of the property, no evidence under the 1981 Act need be produced to the Keeper.
Any case where the question on the application form is answered in the negative must not be queried with the applicant’s agents. The appropriate MH2 note should be entered in the title sheet in any case where satisfactory evidence has not been provided.
If an occupancy right has been noted in the title sheet and still subsists, the qualified note will remain in the proprietorship section even on a subsequent sale. The removal of qualified notes is discussed in paragraph Removal of qualified statement.
In any situation where there is a time-lapse between the granting of a deed under the 1981 Act and the date on which a party ceases to be ‘entitled’ to the subjects, the question must arise as to whether the deed produced under section 6(3)(e) is still the appropriate evidence. For example, the granter of the disposition may have married (or the property may have become a matrimonial home) since the date on which a written declaration was made, an affidavit sworn or the granter of a consent may no longer be married to the transferor. The Keeper reserves the right to judge each case on its merits, taking into account such factors as the length of time that has elapsed, the wording of the written declaration, affidavit, consent or renunciation, the extent to which the requirements of good faith afforded by section 6(3)(e) of the 1981 Act appear to have been met, and the nature of the certification by the transferee’s agent in response to the questions in Part B of the application form. Where a legal settler considers that the time-lapse is sufficiently significant to cause concern, the settler should refer the case to a senior team leader or senior caseworker.
It is possible that a written declaration or affidavit may be fraudulent or that a consent or renunciation may be forged. A transferee for value or heritable creditor is protected against such an eventuality, the effect of sections 6(3)(e) and 8 being that such a transferee or creditor who accepts one of those documents in good faith will not be prejudiced by an occupancy right to which the document purportedly relates. Prior to the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (i.e. applications registered before 1 January 1991) purchasers and creditors could only gain protection in terms of sections 6(3)(e) and 8 respectively if the documentation was produced ‘at the time of the dealing’ or ‘before the granting of the loan.’ The 1990 Act removed this stipulation and, for all applications registered on or after 3 January 1991, the necessary evidence (written declaration, affidavit, consent or renunciation) may be produced after the time of the dealing.
The provisions under the 1990 Act apply in relation to the registration of a disposition granted in exercise of a power of sale to all standard securities registered or recorded after 3 January 1991. Standard securities registered or recorded prior to 1991 will require the normal evidence (see Grant of/power of sale in standard security) plus an assurance that the document was produced to the creditor ‘before the granting of the loan.’
The protection from challenge afforded to a transferee in good faith who is in receipt of a written declaration or consent or renunciation, by section 6(3)(e) of the 1981 Act, does not extend to a donee who has acquired the property by way of gift. This is because section 6(3)(e) applies only to a “transfer for value". A gift would not be a transfer for value and hence would not be protected. Nevertheless, the Keeper will insert the usual unqualified statement with regard to occupancy rights in the title sheet, if one of the documents referred to in Transfers of title above is submitted to him.
Updated January 2007