The Facts
The parties had lived together in a cohabiting relationship for a number of years. They lived with the pursuer's children from a previous relationship. During the relationship, the defender had purchased a property in his sole name for the parties to live in.
The parties separated and the defender moved out in May 2023, leaving the pursuer and her children in the property. In February 2024, the defender asked that the pursuer vacate the property. The pursuer refused responding by raising a court action seeking occupancy rights in the property under section 18(1) for a period of six months (the maximum period that is allowed under the Act at any point of request), an interim order for occupancy rights and an interim interdict to preventing the appellant from selling, transferring or letting the property.
First Instance Hearing
On the matter of the interim orders sought by the pursuer, the information before the court about the pursuer's financial and other circumstances was vague and unvouched. We argued that the terms of section 18 of the 1981 Act were drafted in the present tense. The section referred to parties who "are living with each other as if they were husband and wife or... civil partners" rather than "were living with each other".
In our view the court could only consider the application if the parties were still cohabiting at the time proceedings were raised. However, in this case the parties had been separated for over ten months. The action could not be competent. We relied on the decisions in Verity v Fenner 1993 SCLR 223 and Armour v Anderson 1994 SC 488 which supported this literal approach to the interpretation of section 18. While the case of Armour dealt with a situation where the parties were joint tenants (and therefore neither party required to seek occupancy rights), there were obiter comments from the Lord President who said that an order under Section 18(1) for non-entitled cohabitees could be sought after separation in cases where there were allegations of domestic abuse, so long as the couple were living with each other as if they were man and wife (or civil partners) in the house "at the date of the conduct which gave rise to the application".
We also argued that the terms of section 18 made no provision for interim orders, relying on the case of Smith-Milne v Gammack 1995 SCLR.
The sheriff at first instance did not agree with us. He found that our interpretation of section 18(1) of the 1981 Act ran contrary to its purpose. The sheriff considered there was no issue in law with granting occupancy rights to a cohabitee where parties were separated and no issue with an interim order being granted. He granted the pursuer interim occupancy rights in the property for a period of six months without any investigation into the circumstances beyond the submissions at the interim hearing. The sheriff's note did not set out any basis upon which to distinguish the present case from the case law referred to. We appealed the decision.
The Appeal
Our main points of appeal were that the order granted at first instance granting six months of interim occupancy rights to our client's former partner was incompetent due to the couple's separation, and the order was also incompetent because it was granted on an interim basis. It was argued that it was not Parliament's intention that the remedies afforded by section 18 remain available to a non-entitled partner long after separation as in this case where the parties had been separated for more than ten months.
Decision
The Sheriff Appeal Court allowed our client's appeal and overturned the sheriff's decision. Sheriff Sheehan confirmed that an interim order for an occupancy right in terms of section 18 of the 1981 Act is not competent. However, helpfully, the court also held that a court could expedite the matter using the court rules (namely OCR 33.33B(3)), so that non entitled cohabitees can seek determination of occupancy rights swiftly.
The Sheriff Appeal Court also gave helpful guidance that it was expected that applications for occupancy rights would be determined at a post service hearing following consideration of affidavits, productions and detailed submissions regarding the parties’ cohabitation and their respective circumstances. That being so, such matters would be determined with full information unlike what had happened in this case.
In relation to the competence of seeking occupancy rights where the parties were already separated, the Sheriff Appeal Court followed the decisions in both Verity and Armour. Where protective remedies are sought in conjunction with an application for occupancy rights and domestic abuse is alleged by an applicant, occupancy rights can be sought for so long as the couple were living with each other, as if they were man and wife (or civil partners), in the house at the date of the conduct which brought about the application.
If an application for occupancy rights is made where there was no domestic abuse by an entitled partner, then a literal interpretation of section 18(1) is necessary, and parties must have been cohabiting at the time of the application to the court. The Sheriff Appeal Court recognised that the exact point of separation is not always crystal clear. Sheriff Sheehan noted that cohabitation is a question of fact. The decision set out factors which a court should take into account when considering whether the parties are a cohabiting couple and noted that parties' intentions alone are not determinative of the issue. This may give applicants some leeway in making an application for an order in terms of section 18(1).
This decision makes it clear that non-entitled cohabitants do not have carte blanche to seek protection greater than the law intended and they must consider whether to apply for occupancy rights at an early stage if their relationship appears to be breaking down or in the immediate aftermath of a separation, particularly in circumstances where there is no domestic abuse.
