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JGM, Solicitor
Category: Law
Satisfied Customers: 12088
Experience:  30 years as a practising solicitor.
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My wife has just moved out of our matrimonial home in

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Hi!My wife has just moved out of our matrimonial home in Scotland after we separated last July. She has moved into a council house. She has taken all furniture from the marital home, including some fixtures like curtain poles. We agreed verbally that she could have the furniture. I am planning to move back into the property after privately renting for the last 15 months and will furnish it myself. However she has asked for a copy of the key to the house! I changed the locks recently to safeguard what will be my belongings in the property while I'm offshore etc. I am currently offshore and last night she tried to gain access to the house. The deeds are solely in my name for the property but it was purchased after we were married. She has asked if I have an exclusion order for the house, and if not then she wants a key! Please help!

Thank you for question. I am a solicitor in Scotland. Why does she want a key.

Customer: replied 4 months ago.
Hi!I asked the same question. I pointed out that as all of the furniture in the house has now gone to her new house and she has no belongings there any more that there seems to be no requirement for her to enter the property any more while I'm going to be living in it. I have had no response other than her telling me I need an exclusion order to stop her from walking in any time she likes. I am struggling to see how this is the case and wouldn't be able to guarantee the safeguarding of my personal belongings any longer. Her new partner also had a key when she was still living in the property until she moved out.

I agree with you although as a matter of law she has occupancy rights (for a period of 2 years from separation) in the house as your spouse under the Matrimonial Homes (Family Protection) (Scotland) Act 1981. An exclusion order only applies to a non entitled spouse needing protection from the owner spouse in cases of violence so that doesn’t apply to either of you. Your only way of dealing with this is to divorce her or apply to the court to suspend her occupancy rights on the basis that she doesn’t need access to the house and is just being bloody minded about it.

Customer: replied 4 months ago.
Thank you for your reply. Please can you tell me how I would go about applying to the court to suspend her occupancy rights? Must I do that in person? Can she legally force her way into the property just now? Thanks.

You don’t have to do anything initially. Have a look online at sections 1 and 3 of the Act of Parliament I referred to above and you will see what I mean. If you refuse to allow her access to the house, it is for her to apply to the court to enforce her occupancy rights and you can defend that action by asking the court to restrict her occupancy rights on the basis that she has another home and doesn’t need access to your house for any reason.

Customer: replied 4 months ago.
Ok, thank you for the information so far, very helpful!Would I be right in thinking that I wouldn't have to attend a court if I was to defend the action and a solicitor can do it on my behalf?

Initially, that would be the case, yes, unless there is a full hearing where evidence would be led. In most cases that is unlikely.

Customer: replied 4 months ago.
Thank you.In your professional opinion, bearing in mind that she took every piece of furniture and possessions from the house and has a home of her own now, how likely am I to succeed in restricting her rights to occupancy when I defend?

Very likely, as she has no reason to be in the house and doesn’t need it as a home which is what the purpose of the Act is: to ensure that non entitled spouses who are victims of abuse have a home to go to.

Customer: replied 4 months ago.
Again this is encouraging news. Especially as abuse has never played any part in the marriage or separation at any point. Was all amicable, until now. As you put it earlier, bloody mindedness is what it boils down to, in my opinion.If she applies for occupancy rights can it be a long drawn out process, assuming that her solicitor would have to contact mine, who would have to contact me then a date set for it to be heard and so on and so forth?

I doubt she will do it. She has nothing to gain and lots to lose. Tell her she isn’t getting access, if she wants access she has to go to court to have the occupancy rights affirmed under the Act and you will be asking the court to suspend her occupancy rights as unnecessary. As I said before read the sections of the Act so that you are acquainted with the law here.

Customer: replied 4 months ago.
Thanks again for your reply.Is it likely that her solicitor would probably advise her against applying for it anyway?Thanks

I certainly would.

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