Subject to section 101(6A), Where there is an entitled and a non-entitled partner, or where both partners are entitled, or permitted by a third party, to occupy a family home, either partner may apply to the court for an order—
Where one partner owns or hires, or is acquiring under a hire-purchase or conditional sale agreement, furniture and plenishings in a family home and the other partner has occupancy rights in that home, that other person may apply to the court for an order granting to the applicant the possession or use in the family home of any such furniture and plenishings; but, subject to section 102, an order under this subsection does not prejudice the rights of any third party in relation to the non-performance of any obligation under such hire-purchase or conditional sale agreement or the rights of any secured creditor in relation to the non-performance of a secured obligation.
The court is to grant an application under subsection (1)(a) if it appears to the court that the application relates to a family home; and, on an application under any of paragraphs (b) to (e) of subsection (1) or under subsection (2), the court may make such order relating to the application as appears to it to be just and reasonable having regard to all the circumstances of the case including—
Pending the making of an order under subsection (3), the court, on the application of either partner, may make such interim order as it considers necessary or expedient in relation to—
but an interim order may be made only if the non-applicant partner has been afforded an opportunity of being heard by or represented before the court.
The court is not to make an order under subsection (3) or (4) if it appears that the effect of the order would be to exclude the non-applicant partner from the family home.
If the court makes an order under subsection (3) or (4) which requires the delivery to one partner of anything which has been left in or removed from the family home, it may also grant a warrant authorising a messenger-at-arms or sheriff officer to enter the family home or other premises occupied by the other partner and to search for and take possession of the thing required to be delivered, (if need be by opening shut and lockfast places) and to deliver the thing in accordance with the order.
A warrant granted under subsection (6) is to be executed only after expiry of such period as the court is to specify in the order for delivery.
Where it appears to the court—
in consequence of any act or default on the part of the other partner which was intended to result in such loss or impairment, it may order that other partner to pay to the applicant such compensation as it considers just and reasonable in respect of that loss or impairment.
A partner may renounce in writing the right to apply under subsection (2) for the possession or use of any item of furniture and plenishings.
In subsection (2)—
“secured creditor” has the meaning given by section 113(1) of the Moveable Transactions (Scotland) Act 2023, and
“secured obligation” is to be construed in accordance with section 43(1) of the Moveable Transactions (Scotland) Act 2023.