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1. Scot Law Corn No 60 (1980).
2. See Parl Debs (HL) (1980-81) Vol 417 cols 1000-1013; (HQ Scottish Grand Committee, 12 May 1981, cols 8, 155 17, 21, 26, 28, 34, 35.
3. See Jackson, Robertson and Robson., (of the Law School, University of Strathclyde) The Operation of the Matrimonial Humes (Family Protection) (Scotland) Act 1981 (a report to the Scottish Home and Health Department, 1988) (referred to in the rest of this Part as the "Strathclyde report") p4.
4. Scot Law Com No 60 (1980).
5. Parl Deb, (HC) First Scottish Standing Committee, 16 June 1981, col 101 (Mr Riffind).
6. 1981 Act s6(3)(e) as amended by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985, and the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990.
7. S8, as amended.
8. By the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985, s13.
9. 1981 Act s6(3)(f).
10. It is arguable that such occupancy rights are not protected anyway because s6 says that the continued exercise of occupancy rights is not to be prejudiced "by reason only of any dealing of the entitled spouse relating to that home". A sale by a subsequent owner is not a dealing by the entitled spouse.
11. See paras 11. 19 to 11.21 below. There is valuable information on housing policies and the 1981 Act in the Final Report of the Institute of Housing (Scottish Homeless Group) (University of Strathclyde) on Housing and Marital Breakdown-The Local Authority Response (Feb 1985).
12. Cf O'Neill v O'Neill 1987 SLT (Sh Ct) 26 at p30; Fyfe v Fyfe 1987 SLT (Sh Ct) 38. See also Longtnuir v Longmuir 1985 SLT (Sh Ct) 33 for valuable observations about the procedure for applying for a dispensation. In Perkins v Perkins Glasgow Sheriff Court, 11 Dec 1984, (unreported but referred to in the Strathclyde report at p45) the sheriff dispensed with the husband's consent to a sale of the home by his wife. Among the sheriff's reasons were that the husband had not lived in the house for 2 years and had accommodation of his own. It appeared that his reason for withholding consent related to disagreement as to how the proceeds of sale should be divided.
13. Para 11. 13.
14. Paras 6.9 to 6.29. The options considered were (1) repeal of sections 6 to 9 (2) a new form of more limited protection, based on a judicial power to set aside certain dealings intended to defeat occupancy rights (3) a notice system and (4) minor modifications. Although there was some support for option (2) there was also strong opposition to it on well-argued grounds. The first three options would all be regarded as retrogressive by many consultees.
15. A different view is, however, taken in Nichols and Meston, The Matrimonial Homes (Family Protection) (Scotland) Act 1981 (2d edn 1986) para 6.05.
16. See Robertson, "The Matrimonial Homes (Family Protection) (Scotland) Act 198P' (1982) Journal of the Law Society of Scotland (Workshop) p308.
17. Added by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985, s13.
18. 1987 SLT (Sh Ct) 39 at p41.
19. See e g Earl of Fife v Wilson (1864) 3 M 323; Glen v Roy (1882) 10 R 239; Cooke's Circus Buildings Co Ltd v Welding (1894) 21 R 339; County Council of Stirling v Cullen (1943) 59 Sh Ct Rep 83; HMV Fields Properties Ltd v Skirt 'n' Slack Centre of London Ltd 1987 SLT 2; Shetland Islands Council v B P Petroleum Development 1990 SLT 82.
20. In the case of a public sector secure tenancy coming under the Housing (Scotland) Act 1988 the tenancy may be brought to an end by, among other things, "4 weeks' notice given by the tenant to the landlord". 1988 Act s46(1).
21. Cf Morgan v Morgan and Kyle and Carrick District Council, Ayr Sheriff Court, 12 June 1984 (unreported-referred to in the Strathclyde Report at p43).
22. It is by no means clear when it would be held to be unreasonable for a spouse to withhold consent in this situation. It is, however, clear that section 48 of the Housing (Scotland) Act 1987 could not be used to recover possession, there being no tenancy, no tenant and no landlord. It is arguable that if the landlord grants a tenancy to a new tenant, that tenant is not affected by s6, because his or her rights do not arise by reason only of a dealing by the entitled spouse.
23. See, in particular, Gretton, "Matrimonial Homes Act-Conveyancing" 1990 J1-SS 412-417.
24. Prescription and Limitation (Scotland) Act 1973, s8. This is on the assumption that the right is not a right exercisable as a res merae facultatis.
25. Para 6.31.
26. Family Law (Scotland) Act 1985, s18.
27. See Brown v Brown 1985 SLT 376 at p379.
28. See eg Brown v Brown 1985 SLT 376 at p378; Strathclyde report at pp101 and 159.
29. See the Strathclyde report pp122-144.
30. S14(2).
31. In their Memorandum on the Matrimonial Homes (Family Protection) (Scotland) Act 1981 dated October 1983.
32. In comments on the above Memorandum published in the Journal of the Law Society of Scotland (1984) at p436.
33. We consider the definition of "matrimonial home" later. Here it is enough to note that it does not include a new home provided by a spouse (eg after separation) for himself or herself to live in, whether or not with children, separately from the other spouse. See s22.
34. See para 11.34 below.
35. See Tatters v Tatters 1983 SLT 506.
36. Under the existing law it can be argued that section 14(1) does not expressly make a matrimonial interdict competent. See Tatters v Tatters, above, at p509.
37. Section 1(3) deals with the situation where a non-entitled spouse who is not in occupation of the home seeks to enter and occupy it. It provides that- 'T the entitled spouse refuses to allow the non-entitled spouse to exercise the right [to enter and occupy], the non-entitled spouse may exercise that right only with the leave of the court. . .". For example, a violent husband who has been living apart for a year may return to find that his wife has changed the locks and refuses him entry. He may then be refused leave by the court to re-enter the home and assert his occupancy rights against the wishes of the other spouse. In such a situation an interdict against the husband attempting to force entry to the home should be available.
38 . Para 6.37.
39. See 1984 Journal of the Law Society of Scotland 436 at p437 and the Strathclyde report at pp144 and 162.
40. An interdict made in connection with an exclusion order will prohibit the interdicted spouse from entering the matrimonial home "without the express permission of the applicant". 1981 Act s4(4)(b). However, a matrimonial interdict under s14 might be quite general.
41. There might, for example, be doubt about the precise extent of a prohibited area mentioned in the interdict. Cf the Strathclyde report p136.
42. 1981 Act s15(2).
43. This follows from the definition of "matrimonial interdict" in s14(2).
44. Para 6.41.
45. S16.
46. S17(1) and (2).
47. S 17(4). Intimation should be made, where reasonably practicable, to "the solicitor who acted for [the other spouse] when the interdict was granted or to any other solicitor who the procurator fiscal has reason to believe acts for the time being for that spouse."
48. Strathclyde report pp139-140, 142, 144.
49. Ibid p140.
50. Ibid p139.
51. S17(5)(b)(ii) and (c) provided, of course, that he or she is not in custody in respect of any other matter.
52. Strathclyde report p140.
53. See Macphail, Sheriff Court Practice, p775.
54. Paras 6.45 to 6.49.
55. McRobbie v McRobbie 3 Aug 1983 (noted at 1984 Journal of the Law Society of Scotland p5).
56. Para 11.33 above.
57. See Nichols and Meston op cit para 2.14.
58. Paras 16.38-16.40 below.
59. Review of Child Care Law in Scotland (Scottish Office, 1990) pp43-44.
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