Matrimonial Homes (Family Protection) (Scotland) Act 1981
8.11 Court order dispensing with consent
The court is permitted by Section 7 of the 1981 Act to grant a court order dispensing with the requirement for a consent to a dealing. Such an order may be made if the court agrees that the non-entitled spouse has unreasonably withheld consent; or if the non-entitled spouse cannot give consent because of physical or mental disability; or if the non-entitled spouse cannot be found. Application to the court for such an order may be made by the entitled spouse, or by any other person having an interest (e.g. a subsequent proprietor of the subjects).
An occupancy right terminates on the death of the entitled spouse. Where a proprietor dies, the non-entitled spouse of such a proprietor therefore loses any occupancy right they may have under the 1981 Act. However, the surviving spouse may of course acquire rights of succession to the property under the Succession (Scotland) Act 1964.
Although section 14 of the 1964 Act provides that the whole estate of the deceased person vests in the executor for the purposes of administration, it is generally held that for all other purposes property vests as at the death of the proprietor in the person entitled to succeed. It is therefore possible for the beneficiary to become an entitled spouse in terms of the 1981 Act.
If the person entitled to succeed, instead of completing title, instructs the executor to sell, that transaction could be construed as a dealing of the entitled spouse. If, on the other hand, an executor is directed by a testamentary deed to sell a house forming part of the estate, or requires to sell to meet the debts of the deceased, or to distribute the estate in appropriate shares, there is no question of the transaction being a dealing of an entitled spouse. Similarly, if more than one person is entitled to succeed to the house then no occupancy right capable of enforcement against third parties is created.
When a sale by an executor leads to an application for registration the Keeper will require to examine one of the following documents:
• a written assurance that more than one person was entitled to succeed to the house; or
• a written assurance that the sale was not instructed or requested by the person entitled to succeed (for example, where the executor requires to sell to meet the debts of the deceased); or
• one of the documents referred to in paragraphs Transfers of title and Court order dispensing with consent above.
If the evidence submitted in support of the application is satisfactory, and confirms that there are no subsisting occupancy rights in the subjects then an MH1 note is entered in the title sheet. If it is unclear from the submitted documents that the party to the written declaration, affidavit, consent or renunciation is the sole beneficiary (or the spouse) but the agent has answered the question on the application form that the necessary evidence has been produced then no further enquiry is required. Should appropriate Matrimonial Homes Act evidence not be submitted, and the questions relating to Matrimonial Homes Act evidence on the application form have not been answered ‘yes’, the Keeper will insert a qualified statement, noting the deficiency in evidence.
For example:
‘Note: The Keeper is satisfied that there are in respect of the subjects in this title no 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 any beneficiary of AB (design), said beneficiary having ceased to be entitled on … [date of entry in DIR]. and in respect of whose entitlement no evidence of the non-existence of an occupancy right has been produced to the Keeper.’
This is known as the MH5 note.
8.13 Termination of marriage by divorce
An occupancy right ends on the termination of the marriage. Nevertheless, except where the marriage is terminated by the death of the entitled spouse, evidence of termination of the marriage is not acceptable where the marriage terminated before the occurrence of the dealing, the reason being that the entitled spouse might have remarried and created another occupancy right. Where the marriage was terminated by divorce before the dealing, the appropriate Matrimonial Homes Act evidence is a written declaration or affidavit that there is no non-entitled spouse. If the marriage terminated after the dealing, the Keeper may accept a decree of divorce as evidence that no occupancy rights subsist.
It is self-evident that no occupancy right can arise out of the entitlement of a body corporate (e.g. a limited company or a local authority), as such a body cannot have a spouse. No evidence need be supplied to the Keeper in respect of the entitlement of such a body.
A Landlord has a registrable interest in the subjects affected by a lease but, because of the existence of the lease, the Landlord is not entitled to occupy the property. The spouse of a Landlord cannot, therefore, have an occupancy right in the subjects. In the event of the Landlord’s interest being sold, although no consent, renunciation, affidavit or written declaration etc. need be forwarded to the Keeper, he will require a written assurance from the agent that the subjects are subject to a subsisting lease. Such an assurance is necessary because on the sale and subsequent registration of the landlord’s interest, it may not be apparent to the Keeper that there is a subsisting lease of the subjects. Even if the Keeper is aware of the lease, he has no way of knowing if the lease still subsists. It may have been renounced or abandoned, which would then entitle the Landlord to occupy the subjects and so give rise to a potential occupancy right.
A Tenant under a long lease is entitled to occupy the property and has an interest which is capable of registration. On a disposal of that interest the possibility of an occupancy right existing must therefore be covered by the submission of the appropriate Matrimonial Homes Act evidence to the Keeper.
A fiar, under a liferent and fee title, has a registrable interest in the property but, because of the existence of the liferent, cannot occupy the subjects. On disposal of the property with the consent of the liferenter, no Matrimonial Homes Act evidence need be supplied to the Keeper for the fiar. The position is different for the liferenter. As the liferenter has both a registrable interest and a right to occupy the subjects, Matrimonial Homes Act evidence will be required.
If the liferent was renounced some time before the conveyance of the subjects but after the commencement date of the 1981 Act, the Keeper will require to examine the appropriate evidence under section 6(3)(e) in respect of both the liferenter and the fiar. In these circumstances the liferenter had an interest up to the time of the renunciation of the liferent, from which point the fiar became entitled to occupy the property.
Where property is held by trustees, there can be no occupancy right of a spouse of any of the trustees because the trustees are not entitled to occupy the property as individuals. No evidence need therefore be supplied for the trustees. Nor will the Keeper require evidence in connection with a sale by a Trustee in Sequestration. The Keeper’s view is that such a transaction is not a voluntary dealing by the entitled spouse. Appropriate evidence, in terms of section 40 of the Bankruptcy (Scotland) Act 1985, will, however, have to be produced to the Keeper (see Disposal of bankrupt’s family home).
8.18 Physical incapacity of seller
If the seller suffers from a physical incapacity such that it would not be possible to sign a written declaration or affidavit, the Keeper will accept a written declaration or affidavit executed in terms of section 9 of the Requirements of Writing (Scotland) Act 1995. In the case of an affidavit the Keeper recommends that the ‘relevant person’ for the purposes of section 9 should be a different individual from the notary public who receives the sworn statement. Note also that the 2006 Act specifically empowers an attorney or guardian to grant the appropriate evidence – see para. 8.20 below.
8.19 Mental incapacity of seller - curators bonis
Where an individual has become incapax, the court may appoint a Guardian to handle that person’s interests. The Keeper’s practice is to accept that a transfer by a Guardian is not a dealing of the incapax to which section 6 of the 1981 Act applies. In such a case, the Keeper is prepared to enter the usual unqualified statement regarding occupancy rights in the title sheet, without seeing documentary evidence in one of the forms provided for in section 6(3)(e) of the 1981 Act (see Transfers of title). Note that the 2006 Act makes this position uncertain as it provides for the guardian to grant appropriate evidence – see para.8.20 below. The submission of any such evidence by the guardian should not be raised with the agents but archived with the application without comment.
In terms of s.6(3)(e) of the 1981 Act (as amended by the Family Law (Scotland) Act 2006), a written declaration, consent or renunciation can be signed by a person acting on behalf of the transferor/non-entitled spouse under a power of attorney, or as a guardian (within the meaning of the Adults with Incapacity (Scotland) Act 2004).
8.21 Mental incapacity of the seller since granting the power of attorney
In cases where the relevant power of attorney is a continuing power of attorney or a welfare power of attorney in terms of the Adults with Incapacity (Scotland) Act 2000 the incapacity of the granter of the power of attorney does not affect the attorney’s ability to grant appropriate evidence (see para. 8.20 above).
For applications received before 4 May 2006 (and the powers referred to at para. 8.20 above were therefore not available to the Attorney) the Keeper may be prepared to exercise discretion and accept alternative evidence if the transferor is unable to make a written declaration through becoming incapax since granting the power of attorney (in a case where the power of attorney is not a continuing power of attorney or a welfare power of attorney in terms of the Adults with Incapacity (Scotland) Act 2000). Before exercising discretion, the Keeper would have to be satisfied on two points:
1. That there is good reason why the evidence cannot be obtained in proper form. If this is because the transferor is unable to understand and make a written declaration, the Keeper would expect to see a letter from the transferor’s doctor giving some indication of the nature of the problem, confirming that the transferor is unable to understand and make the relevant written declaration, noting the length of time the person has been incapax and indicating whether the incapacity is likely to be permanent.
2. That there is no risk of the transferor being married. If, for example, the transferor was recently widowed and was already incapax before his or her spouse died, remarriage could not lawfully have taken place; but if the transferor has been widowed for a number of years, or was never married, the Keeper would look for assurances that there was no non-entitled spouse. Such assurances should normally take the form of written declarations from one or more people who have had close and regular contact with the transferor throughout the relevant period.
Settlers should bear in mind that such an exercise of discretion may expose the Keeper to risk if it subsequently transpires that the information provided was inaccurate (e.g. if the person(s) making the written declaration(s) were unaware of the existence of a spouse). Any cases where there is doubt as to the acceptability of the evidence should therefore be referred to a senior caseworker.
8.22 Affidavit/Renunciation sworn/affirmed in foreign country
An affidavit or renunciation under the 1981 Act, which has been sworn/affirmed in a foreign country, will be acceptable to the Keeper in the following circumstances:
• It will be acceptable if it is sworn in the presence of a person authorised by the law of the country in question to receive sworn statements, and supported by evidence that the person before whom it is sworn is duly authorised. Such evidence should take the form of an apostille or legalisation, as appropriate.
• An apostille is a certificate of status of the notary or authorised official provided by the foreign office of the country in which the document is signed. It is usually sealed with the seal of the office granting the certificate. The apostille was introduced by the Hague Convention 5 October 1961 in which a number of countries agreed a process for establishing the authenticity of documents signed in a foreign country. The majority of countries are parties to the Hague Convention. The Certificate should normally be translated if it is in a foreign language.
• Legalisation is the process used for authentication if a country is not a party to the Hague Convention. The Certificate is authenticated by British Consular Officials. The Certificate should bear the seal of the Consular Office and signature of the Consul.
• It will also be acceptable if sworn in the presence of a UK diplomatic official acting in the country in question and authorised under section 6 of the Commissioners for Oaths Act 1889 or before a Scottish Notary in any country.
If sworn in England, the Affidavit or renunciation will be acceptable if it is sworn in the presence of a Solicitor licensed to practise there, since all English Solicitors are Commissioners for Oaths by virtue of section 81 of the Solicitors Act 1974.
Note that if the evidence provided takes the form of a written declaration made after 30 June 2006 then the foregoing requirements do not apply, whether or not the declaration was made in another country.
Updated May 2007