Marianne McBride v Graeme McInnes (Sheriff Appeal Court Civil) [2024] SACCIV 42 (03 October 2024)

Marianne McBride v Graeme McInnes (Sheriff Appeal Court Civil) [2024] SACCIV 42 (03 October 2024)

It is not competent for a court to grant an interim occupancy right to a non-entitled cohabitant under section 18 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981, as the statute does not provide for such interim orders and the relevant provisions only apply once an order under section 18(1) is in force. Furthermore, where the parties have ceased cohabiting and no protective remedies are sought, an application for occupancy rights under section 18(1) is incompetent. The sheriff's interlocutor granting interim occupancy rights and interdict was therefore recalled and the action dismissed.

Citation
[2024] SACCIV 42
Parties
Pursuer and Respondent: Marianne McBride; Defender and Appellant: Graeme McInnes
Jurisdiction
Scotland
Judgment Date
03 October 2024
Procedural Posture
Appeal (civil, Family Law) / Appeal Against Interlocutor Granting Interim Occupancy Right and Interim Interdict
Outcome
Appeal allowed; interlocutor of 8 April 2024 recalled; action dismissed.
Legal Topics
Cohabitation, Occupancy Rights, Interim Orders, Matrimonial Homes (family Protection) (scotland) Act 1981, Competency of Orders
Family Law Property Law Civil Procedure Cohabitation Occupancy Rights Interim Orders Matrimonial Homes (family Protection) (scotland) Act 1981 Competency of Orders

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Parties

Marianne McBride

Pursuer and Respondent

Graeme McInnes

Defender and Appellant

Procedural Posture

Appeal (civil, Family Law) / Appeal Against Interlocutor Granting Interim Occupancy Right and Interim Interdict

Legal Issues

  1. 1 Is it competent to grant an interim occupancy right to a non-entitled cohabitant under section 18 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981?
  2. 2 Is it competent to grant an occupancy right to a former cohabitant who is no longer living with the entitled partner at the time of the application?

Ratio Decidendi

It is not competent for a court to grant an interim occupancy right to a non-entitled cohabitant under section 18 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981, as the statute does not provide for such interim orders and the relevant provisions only apply once an order under section 18(1) is in force. Furthermore, where the parties have ceased cohabiting and no protective remedies are sought, an application for occupancy rights under section 18(1) is incompetent. The sheriff's interlocutor granting interim occupancy rights and interdict was therefore recalled and the action dismissed.

Court Disposition

Appeal allowed; interlocutor of 8 April 2024 recalled; action dismissed.

Orders

  • Recall of interlocutor dated 8 April 2024
  • Repel first and second pleas-in-law for respondent