How JustAnswer Works:
  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site. Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.
Ask JGM Your Own Question
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 12199
Experience:  30 years as a practising solicitor.
Type Your Scots Law Question Here...
JGM is online now

I lived in the marital home years and it was to be put

This answer was rated:

I lived in the marital home for 4 years and it was to be put up for sale. My ex has now moved into the property (despite not living there for 4 years) even though I have not officially moved out. I was in the process of moving myself and my two children (who I have residency of) to my girlfriends house. I feel this is disruptive to the children as it will cause confusion. Can I have her removed, what are her occupancy rights?
Thank you for your question.
Who owns the house?
Customer: replied 2 years ago.
It is in joint names. I've lived in the house without her for over 4 years, maintaining the property. The house had been agreed to be sold - just the details of costs etc to be ironed out - but when I wasn't home she sneaked in and moved her things in even though I have furniture and belongings there.
The law is that where a property is in joint names either party is entitled to live there. She does not have occupancy rights. Occupancy rights relate to a spouse or partner without ownership rights. She has ownership rights which are the most powerful rights in connection with a heritable property. If she wants to stay there she can do so.
Your remedy is to apply to the court for an order for sale of the property. You are entitled to that order but until then she is allowed to stay there.
Happy to discuss further. Please leave a positive rating so that I am credited for my time.
Customer: replied 2 years ago.
I had not moved out of the property and she has moved in when i wasn't there with her partner. I have maintained the property and also have residence of our two children. There was a divorce action with the house being agreed to be sold - yet she has simply just moved in.
None of that matters. She is a joint owner. She is allowed to live in a property that she owns.
Customer: replied 2 years ago.
My lawyer had told me that under the Matrimonial Homes Act that she lost any right to occupy the property? What does occupancy rights mean then? She has not lived or contributed to the house in 4 years. In the divorce action in a writ it was stated that she was looking for the house to be sold which I agreed to - what are my options with regards ***** ***** her removed as - my furniture, personal belongings, registered address (bank details etc) are still there. Am I able to have her things moved out as it is still my address and I had not vacated the property at this time? What is the quickest way of getting her out of the property (there is a pending divorce action with writs and defences lodged at the court stating that the house is to be sold)?
There are two children involved in this who have contact (I have residency) who are very messed up and confused with all this.
Your lawyer is wrong, I'm afraid. Occupancy rights relate to a situation where a spouse is non entitled to the house as a matter of property law. You have told me that your wife jointly owns the house with you. If that is correct then she has a right to live in the property by virtue of being an owner and occupancy rights are entirely irrelevant. What you have to do is progress the application to the court for a sale of the property and she will have to leave once the property is sold and an entry date is fixed.
In the interim you can't remove her or her possessions any more than she can remove you or your possessions. Both of you have equal rights in the house.
Your lawyer should have a look at the terms of the Matrimonial Homes (Family Protection)(Scotland) Act 1981 which relates to the rights on non entitled spouses, ie, the right of a spouse WITHOUT TITLE to occupy the matrimonial home. Your wife is an entitled spouse, not a non entitled spouse as a matter of law so the Act doesn't apply.
Customer: replied 2 years ago.
If I choose to move back in to the home and stay there - how do I go about this? What would be required?
Nothing is required. You can just move back in. You are also a joint owner.
Customer: replied 2 years ago.
Even though her and her partner are there? How can I get her to move out? By court I take it? What is the process?
You can't get her out. I've already dealt with that. You can go to court to get the partner out on the basis that you as an owner don't agree to him being there. Your solicitor would have to deal with this action for you unless you have experience in dealing with court actions yourself. It is also not an overnight process. It could take some months. Your money would perhaps be better spent trying to get an order from the court for a sale as I suggested above.
JGM and other Scots Law Specialists are ready to help you