Commentary on Sections Part 3 - Civil Partnerships: Scotland.Introduction Chapter 3 – Occupancy Rights and Tenancies Section 104: Exclusion orders
213.This section provides that either civil partner in the family home can apply to the court for an order which suspends the occupancy rights of the other civil partner in a family home. Subsection (2) sets out that the court is to make an exclusion order if it appears necessary to protect the applicant or any child of the family from the conduct of the other civil partner. This is subject to subsection (3) which sets out where it would appear unjustified or unreasonable to make an exclusion order.
214.Subsection (4) sets out the types of exclusion order that the court can grant, where this is necessary. Subsection (5) sets out further directions that the court may attach when making an exclusion order. Subsection (6) gives the court power to make an interim order and sets out that subsections (4) and (5) will apply in the same way to an interim order as to an exclusion order. Subsection (7) sets out that an interim order can only be made if the non-applicant partner has been given an opportunity to be heard or represented before the court.
215.If both civil partners are entitled or permitted by a third party to occupy the family home, subsection (8) makes it incompetent for one civil partner to bring an action to eject the other from the family home. This is without prejudice to subsections (1) and (6).