Matrimonial Homes (Family Protection) (S) Act 1981

Question 1

What are the objective is the act

Answer 1

To provide more effective civil remedies by affording spouses/CP’s with more powers and rights in relation to the matrimonial/family home

Question 2

Def of matrimonial home under s22

Answer 2

Any abode made available by other or both spouses, as a family or matrimonial residence

Question 3

S1 provides non-entitled spouse with occupancy rights by virtue of being married

Answer 3

If already in occupation, can continue to occupy

If not, they receive the right to re-enter and occupy

Rights end upon dissolution/divorce or when there has been no cohab for 2 years during which non entitled spouse has not occupied home

Question 4

S2 subsidiary and consequential rights to occupancy rights

Answer 4

Rights which allow them to stay in occupancy

Pay the mortgage
Carry out essential repairs etc

Question 5

S3 - regulatory orders

Answer 5

Court can exercise its discretion and choose to declare or enforce applicants right of occupation

Or

Restrict non applicants occupancy rights

Regulate the occupancy rights of both parties

Must have regard to s3(3) factors

Question 6

S3(3) factors

Answer 6

Conduct of spouses

Respective needs and financial resources

Needs of any child of family

Extent to which home is necessary for occupation

Whether entitled spouse has offered non entitled any suitable alternative accommodation

Question 7

S4 - exclusion orders

Answer 7

Ability for courts to exclude either of the spouses from home if

Necessary for the protection of applicant, or any child, from any conduct or threatened or reasonably apprehended conduct which is or could be injurious for mental or physical health if applicant or child

Question 8

Court shall not make exclusion order where it would be

Answer 8

‘Unjustified or unreasonable’ having regard to ‘all circumstances of the case’

Must again look to s3(3) factors

Question 9

Construction of s4 initially caused Scottish courts much difficulty

Cases?

Answer 9

(Bell v Bell) and (Smith v Smith)

Court of session held that test under s4(2) was ‘high and severe’

Would be difficult to satisfy if applicant living outside the matrimonial home at time of application
Or if interdict had not first been breached

Question 10

Approach to cases highly criticised, test too difficult to satisfy, led to change

Cases?

Answer 10

(Brown v Brown) and
(Robertson v Robertson)

Illustrated that exclusion orders can be granted where applicants were not still living in the home at the time off application

Does not need to be an immediate and present danger

Question 11

McCafferty
V
McCafferty

Answer 11

4 part necessity test

1. What is the nature of alleged conduct?
2. Is court satisfies conduct is likely to be repeated if cohab continues?
3. Has conduct been, or would be if repeated, injurious to the physical or mental health of the applicant or child?

Test is still of a subjective nature - ruling will only be interfered on appeal if no reasonable judge could have reached the decision and they were completely wrong