Stevenson v. Roy & Anor [2002] ScotCS 59 (5th March, 2002)

Stevenson v. Roy & Anor [2002] ScotCS 59 (5th March, 2002)

The five-year period in section 6(3)(f) of the 1981 Act is not interrupted by raising proceedings to assert occupancy rights; only actual occupation suffices. As the pursuer had not occupied the property for five years after her husband ceased to be entitled to occupy, her rights were extinguished.

Citation
[2002] ScotCS 59
Parties
Pursuer: Jane Elizabeth Stevenson; Defender: Thomas Roy; Defender: Olwyn Elizabeth Roy
Jurisdiction
Scotland
Procedural Posture
Civil Action for Declarator and Enforcement of Occupancy Rights / Procedure Roll Discussion (plea to Relevancy and Statutory Defence)
Outcome
Action dismissed
Legal Topics
Matrimonial Homes, Occupancy Rights, Statutory Interpretation, Time Bar Under Matrimonial Homes (family Protection) (scotland) Act 1981
Family Law Property Law Matrimonial Homes Occupancy Rights Statutory Interpretation Time Bar Under Matrimonial Homes (family Protection) (scotland) Act 1981

Case Brief

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Parties

Jane Elizabeth Stevenson

Pursuer

Thomas Roy

Defender

Olwyn Elizabeth Roy

Defender

Procedural Posture

Civil Action for Declarator and Enforcement of Occupancy Rights / Procedure Roll Discussion (plea to Relevancy and Statutory Defence)

Legal Issues

  1. 1 Whether the pursuer's right to occupy the former matrimonial home as a non-entitled spouse was extinguished by the operation of section 6(3)(f) of the Matrimonial Homes (Family Protection) (Scotland) Act 1981
  2. 2 Whether raising proceedings within five years of the entitled spouse ceasing to be entitled to occupy interrupts the five-year period under section 6(3)(f)

Ratio Decidendi

The five-year period in section 6(3)(f) of the 1981 Act is not interrupted by raising proceedings to assert occupancy rights; only actual occupation suffices. As the pursuer had not occupied the property for five years after her husband ceased to be entitled to occupy, her rights were extinguished.

Court Disposition

Action dismissed

Orders

  • Sustained defenders' pleas to relevancy and statutory defence under section 6(3)(f) of the 1981 Act
  • Dismissed the pursuer's action