Sheriff Appeal Court reduces interim occupancy right granted to former cohabitee 11 months after separation

About this case:

• Citation:
  [2024] SAC (Civ) 42
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Wendy A Sheehan

Pursuer Marianne McBride originally obtained an interlocutor from the sheriff granting her an interim occupancy right to defender Graeme McInnes’ property in terms of section 18 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 and interdicting him from selling or transferring the property. It was agreed by both parties that the interdict was wrongly sought, but the defender further challenged the competency of the grant of an interim occupancy right.

The appeal was heard by Sheriff Principal Derek Pyle and Appeals Sheriffs Wendy Sheehan and Christopher Shead. Aitken, advocate, appeared for the pursuer and respondent and Wylie, solicitor, for the defender and appellant.

Similar case

The parties cohabited between 2016 and 23 May 2023, together with the respondent’s teenage children from a previous relationship. For the latter part of their time together they occupied the property at the centre of the appeal, which was bought during the cohabitation and held solely in the appellant’s name. The relationship broke down and the appellant moved out of the property in May 2023, while the respondent and her children remained.

After attempts at reconciliation were unsuccessful, in February 2024 the appellant’s solicitor wrote to the respondent and advised her that she and her children required to vacate the property no later than 9 April 2024. This led to the respondent’s action before Glasgow Sheriff Court, at which the appellant argued that the terms of section 18 of the 1981 Act would only need to be considered by the court if the parties were still cohabiting.

The sheriff, having considered the respondent’s averments and the parties’ submissions, determined that the respondent, as a non-entitled partner, could competently establish occupancy rights in the appellant’s property following proof. In order to protect her position in the meantime, he granted both of the respondent’s craves on an interim basis.

For the appellant it was submitted that the sheriff had not explained why he considered an interim order to be competent, noting that a similar Sheriff Court case from 1995, Smith-Milne v Gammach, had reached the conclusion that an interim order was not competent. The appellant also argued that the order made was not competent given that the parties had been separated for over 10 months. The respondent had not prayed in aid any conduct during the cohabitation, such as abusive behaviour, that would support the application in line with Armour. The respondent submitted that Smith-Milne had been wrongly decided, and that a purposive rather than literal approach ought to be taken to section 18. The respondent made a similar argument in relation to the competency of the order and argued that a purposive approach was appropriate and that the respondent did not need to show any ‘conduct’ for the application to be competent and that the application could be made even though the parties had separated. 

Long after separation

Delivering the opinion of the court, Appeal Sheriff Sheehan said of the reasoning for the decision in Smith-Milne: “The competency of an interim order for an occupancy right under section 18 of the 1981 Act was considered by Sheriff Principal Hay in Byars v McDonald (1990). Within that judgment, the sheriff principal stated: ‘Section 18 of the Act makes no provision for declarator of occupancy rights and in this respect differs from section 3(1)(a) which regulates the position between spouses’.”

She continued: “In Smith-Milne, Sheriff Kelbie was aware of Byars. However, he did not have access to a copy of the sheriff principal’s judgment, nor the report contained in Green’s Weekly Digest. He understood that Byars was to the effect that an interim order for an occupancy right for a cohabitant was incompetent. Had he had access to the sheriff principal’s judgment, his understanding would have been formally confirmed. Moreover, Byars was binding on him.”

Considering that these cases were correctly decided, Sheriff Sheehan said: “As cohabitation is a situation to be inferred from the facts of a particular case, there can be a degree of uncertainty as to when a particular cohabitation comes to an end. This may give some applicants leeway in making an application for an order in terms of section 18(1) during the breakdown of a cohabitation. However it was not Parliament’s intention that the remedies afforded by section 18 remain available to a non-entitled partner long after separation, particularly in circumstances where there is no requirement for protective orders.”

She concluded: “In this case, no protective remedies are sought by the respondent, no domestically abusive conduct has been averred by her, the parties ceased to cohabit 11 months prior to the application being made and the appellant gave the respondent 2 months’ notice to vacate the property which he owns. A literal interpretation of section 18(1) is appropriate in these circumstances.”

The court therefore allowed the appeal and granted decree of dismissal.