Suspending occupancy rights in matrimonial/family home
Spouses/civil partners and cohabitants cannot be excluded from their home if they have occupancy rights, unless there are bail conditions in force preventing them from attending the property or entering it, or an Exclusion Order is granted against them. The Exclusion Order suspends the occupancy rights. To be effective it must be combined with other orders such as a warrant for summary objection, and Interdict preventing the Defender from entering or remaining in the immediate vicinity of the home, and an order preventing removal of property/furnishings from the home. If you or someone you know needs advice on next steps, get in touch with our family lawyers on 0141 429 8166 today. We can provide bespoke, empathetic guidance, whatever your case.
When determining whether or not to grant one the court will consider the nature and quality of the alleged conduct, the likelihood of a repetition, whether the conduct would be injurious to the physical or mental health of the Pursuer or any child of the family, and whether the orders are necessary for the future protection of the physical or mental health of the Pursuer or child.
Interim Exclusion Order can be made an early stage in the proceedings following the court assigning a hearing and the other party receiving notice of same and the opportunity to attend at the hearing. Where the property in question is rented or occupied with consent of a third party, such as a heritable creditor, intimation of the orders sought must also be made on the third party.
Exclusion Orders and other protective orders can be ancillary to a crave for Divorce or applied for separately. They can be varied or recalled on the application of either party. They will cease to have effect for spouses/civil partners on the termination of the marriage/civil partnership by divorce, annulment or death; when the entitled spouse/cohabitant/civil partner ceased to be so entitled for example by repossession of the house, termination of employment where the house is provided by an employer; or where the parties are occupying the house by permission of a third party and that permission is withdrawn.
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