Scotland 
This was an appeal against a Sheriff’s decision under section 3 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981. The appellant was a non-entitled spouse under the Act and the respondent was the tenant of the property which the parties occupied together until May 2010. The initial action was raised after the appellant, who suffered from a bi-polar disorder, returned home from hospital to find the respondent had changed the locks. At a hearing on 17 June 2010, the Sheriff refused to grant two interim orders sought under section 3(4) of the Act; to enforce the appellant’s right to occupy the matrimonial home and to protect his rights by means of an interdict.
| Submissions for the appellant were made in respect of the different tests for applications concerning final orders under section 3(1) of the Act (set out in section 3(3)), and interim orders under section 3(3) (set out in section 3(4)). Interim orders had to be ‘necessary or expedient’ in relation to certain matters, including the residence of either spouse in the matrimonial home. It was argued the Sheriff had erred in assessing what was ‘expedient’ and failed to give sufficient weight to the appellant’s medical needs and the inconvenience of travelling for treatment and to see his son, who continued to live with his mother. It was also submitted that the net effect of the Sheriff’s decision was to exclude the appellant from the matrimonial home, although no exclusion order had been sought. The respondent’s submissions highlighted the court’s wide discretion to make an interim order in terms of section 3(4) of the Act. It was submitted that the Sheriff had taken all relevant factors into account and applied the correct test. Further, the respondent changed the locks following an incident where the appellant allegedly attacked his son. The Sheriff’s decision did not exclude the appellant from the property, as his son could still let him in. In respect of where the balance of convenience lay, it would not be convenient for the respondent and her son to leave the property. The Sheriff Principal observed that regulatory orders under section 3 of the Act were relatively rare and as such, guidance from previous judicial decisions was unavailable. He dismissed the appellant’s argument that an authority on a section 19 order was relevant to the present case. The Sheriff Principal was satisfied that the Sheriff had applied the correct test under section 3(4) and considered that there was no error in law, nor failure to take into account a material fact, or indication that immaterial facts were considered by the Sheriff. The Sheriff had not misunderstood the terms ‘necessary or expedient’. The argument that an interim exclusion order against the appellant had effectively been granted was rejected. Finally, the Sheriff Principal also agreed with the Sheriff’s view of interim orders as a means to achieve an end in the circumstances of the case and concluded that in the present case, the circumstances allowed for the view that such orders were not ‘necessary or expedient’. The Sheriff Principal therefore granted a declarator concerning the matrimonial home but otherwise refused the appeal, and the case was remitted to the Sheriff. | |
| Court: Sheriff Court (Scotland) |
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