Perhaps the house is in your name alone and your marriage has broken down. Perhaps you need to move for work and your partner does not want to go. Or perhaps you are the one who is not on the title and you are worried the house could be sold from under you. Whichever side you are on, the question is the same: can a house in Scotland be sold without the other person agreeing?
Scots law gives spouses and civil partners strong protection in the family home, and it treats unmarried couples differently. This guide explains occupancy rights, the paperwork a buyer’s solicitor will ask for, and the options when agreement is not possible.
The short answer is that it depends on your relationship and on whose name is on the title. If you own the home alone and are married or in a civil partnership, your spouse or civil partner usually has occupancy rights under the Matrimonial Homes (Family Protection) (Scotland) Act 1981. A sale will not defeat those rights unless they consent or renounce them in the proper form, the court dispenses with their consent, or a specific exception applies. In practice, the buyer’s solicitor will not proceed without the right documents. Unmarried partners have no automatic occupancy rights, and if the home is jointly owned, one owner can never sell alone.
Key points at a glance
- A spouse or civil partner who is not on the title usually has occupancy rights in the family home.
- Those rights survive a sale unless they give written consent, renounce them, or the court dispenses with their consent.
- Every Scottish sale involves a written declaration about occupancy rights, which the buyer’s solicitor will insist on.
- Occupancy rights can end after two years of separation in which the other spouse has not lived in the home.
- Cohabitants have no automatic occupancy rights but can apply to the court, and may have financial claims if the relationship ends.
- Joint owners must both sign the disposition, or one must raise an action of division and sale.
What are occupancy rights in Scotland?
Occupancy rights come from section 1 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981. The Act calls the spouse who owns or is entitled to occupy the home the “entitled spouse”, and the other spouse the “non-entitled spouse”.
A non-entitled spouse who lives in the home has the right to continue living there. One who has moved out has the right to enter and occupy it again, although if the owner refuses, they need the court’s permission. These rights include living there with any child of the family.
The rights attach to the “matrimonial home”, which the Act defines as a house, flat, caravan, houseboat or similar that has been provided or made available as a family residence, together with its garden and grounds. A property provided for one spouse to live in separately from the other does not count.
Do civil partners have the same rights?
Yes. The Civil Partnership Act 2004 gives civil partners in Scotland equivalent occupancy rights in the “family home”. Section 106 of that Act mirrors the sale rules for spouses, including consent, renunciation, written declarations and the two year rule. Everything in this guide about spouses applies in the same way to civil partners.
Can I sell the house if it is in my name only?
As the sole owner you have the legal title to sell. The difficulty is what happens to your spouse’s occupancy rights. Under section 6 of the 1981 Act, a non-entitled spouse’s occupancy rights are not defeated simply because the owner sells or otherwise deals with the home, and the buyer does not gain the right to occupy just because of the sale.
Put simply, a buyer could find themselves owning a house that your spouse is still entitled to live in. No buyer, and no lender, will accept that risk. That is why a sale of a matrimonial home almost always needs your spouse’s cooperation or a court order.
When does a sale override occupancy rights?
Section 6(3) sets out the situations where a sale is not affected by occupancy rights. The main ones are:
- Your spouse gives written consent to the sale in the prescribed form, or renounces their occupancy rights in writing.
- The court dispenses with your spouse’s consent under section 7.
- The sale implements a binding obligation you entered into before the marriage.
- The sale is to a buyer acting in good faith and for value, and you produce either a written declaration that the property is not a matrimonial home in which a spouse has occupancy rights, or a proper consent or renunciation.
- You have permanently ceased to be entitled to occupy the home and your spouse has not lived there for a continuous period of two years.
What is the difference between consent and renunciation?
Consent and renunciation both allow a sale to go ahead, but they work differently.
| Document | What it does | Formalities |
|---|---|---|
| Consent | Your spouse agrees to a particular sale or other dealing. Their occupancy rights cannot be enforced against that buyer. | Written, in the form prescribed by regulations. Often signed when the disposition is signed. |
| Renunciation | Your spouse gives up their occupancy rights in a particular home, or a home you intend to make your matrimonial home. | Written, and your spouse must swear or affirm before a notary public that it is given freely and without coercion of any kind. |
| Written declaration | You, as seller, declare that the property is not a matrimonial home in which a spouse of yours has occupancy rights. | Signed by you or your attorney or guardian. It is often included in the disposition itself. |
| Court dispensation | The sheriff dispenses with the need for your spouse’s consent. | Application to court under section 7, which can set a minimum price and time limit. |
The notary requirement for a renunciation is there to protect the non-entitled spouse. It makes sure they understand what they are giving up and are not being pressured. Your spouse is entitled to take independent legal advice before signing anything.
What matrimonial homes documents will the buyer’s solicitor ask for?
Every residential sale in Scotland deals with occupancy rights, even where the seller is single. The buyer’s solicitor will ask for what is often called the matrimonial homes documentation, and it usually takes one of these forms:
- If you are single, widowed or divorced, a written declaration that the property is not a matrimonial or family home in which anyone has occupancy rights.
- If you are married or in a civil partnership and the property is not the family home, for example a buy to let, a written declaration to that effect.
- If it is the family home and you are the sole owner, your spouse’s consent or renunciation as well as your declaration.
- If you and your spouse own it jointly, both of you sign the disposition as sellers, which deals with the issue.
Before 2006, the seller’s statement was an affidavit sworn before a notary public. The Family Law (Scotland) Act 2006 replaced this with a simpler written declaration, although you may still see the older word used. Registers of Scotland guidance notes that a declaration can be included in the disposition. Our guides to the documents you need to sell a house in Scotland and to the role of the Land Register when selling explain how this fits with the rest of the paperwork.
Good to know: If you hold a power of attorney for someone, the declaration, consent or renunciation can be signed by the attorney or a guardian, as long as their powers cover it. Our guide on selling someone else’s property under a power of attorney has more detail.
What if my spouse refuses to consent?
You can ask the court to dispense with their consent under section 7 of the 1981 Act. The court can do so where consent is being unreasonably withheld, where your spouse cannot consent because of physical or mental disability, where they cannot be found after reasonable steps, or where they are under legal age.
Consent is treated as unreasonably withheld if your spouse led you to believe they would agree and nothing has changed to their disadvantage since, or if you took all reasonable steps to ask and got no reply. The court looks at all the circumstances, including the needs of both of you and any children, and the availability of other housing.
For a proposed sale where no price has been agreed yet, the court can only dispense with consent on condition that the sale achieves at least a price it sets and that the contract is concluded within a period it sets. If the court refuses, it can order the spouse living in the home to make payments to the owner for their occupation.
Do occupancy rights ever end?
Yes. The Family Law (Scotland) Act 2006 introduced a two year rule and shortened an earlier five year period. Under section 1(7) of the 1981 Act, occupancy rights end if the spouses have not lived together for a continuous period of two years and the non-entitled spouse has not occupied the home during that time.
Section 6(3)(f) works alongside this after a sale. If the owner has permanently ceased to be entitled to occupy the home, and the non-entitled spouse has not lived there for a continuous two years, their occupancy rights cannot be enforced against the new owner.
Occupancy rights under the 1981 Act depend on being married or in a civil partnership, so they generally come to an end on divorce or dissolution. The court can still make orders about who lives in the home as part of the divorce, so take advice before assuming the position is clear.
What happens if a seller lies on the declaration?
The law protects a buyer who acts in good faith and pays for the property. If the seller produces a written declaration saying there is no spouse with occupancy rights, the buyer is not expected to investigate further. Section 6(1A) also protects later buyers who acquire the home in good faith and for value.
That means a spouse who was deceived may not be able to enforce occupancy rights against the new owner. The consequences fall on the seller instead. Registers of Scotland guidance recognises that a declaration may be fraudulent, and knowingly making a false one is a serious matter that could lead to legal action against the seller, including criminal proceedings in serious cases. A spouse who loses out may also be able to raise the matter in a divorce, where the court deals with the division of matrimonial property.
Watch out: Never sign a declaration that is not true, and never sign a consent or renunciation under pressure. If you are the spouse who is not on the title and you fear a sale is being arranged without you, speak to a family law solicitor quickly.
Do unmarried partners have occupancy rights in Scotland?
Not automatically. If you live with a partner but are not married or in a civil partnership, and the home is in their sole name, you do not have the occupancy rights a spouse has. Under section 18 of the 1981 Act, a non-entitled cohabitant can apply to the court for occupancy rights. The court considers all the circumstances, including how long you have lived together and whether there are children.
Any order lasts for up to six months, and the court can extend it for further periods of up to six months each. The consent and renunciation rules in section 6 are written for spouses and civil partners, so a cohabitant cannot block a sale in the same way. Section 18 also states that it does not prejudice the rights of third parties with an interest in the house.
Financial claims for cohabitants
Section 28 of the Family Law (Scotland) Act 2006 allows a former cohabitant to ask the court for a payment when the relationship ends, based on economic advantage and disadvantage, including non-financial contributions such as childcare. The claim must be made no later than one year after you stop living together, so timing really matters.
The Scottish Government consulted on reforming cohabitants’ financial rights in its consultation on family law, which ran from 29 December 2025 to 21 April 2026. At the time of writing in November 2026, the proposed changes have not become law, so the current rules still apply.
Can one joint owner sell without the other?
No. If the title is in both names, whether you are married, in a civil partnership or cohabiting, both owners must sign the disposition. One owner cannot sell the whole property alone. Our guide on whether a jointly owned property can be sold by one owner in Scotland covers this in depth.
Where co-owners cannot agree, either can raise an action of division and sale in the sheriff court. For spouses who own the matrimonial home together, section 19 of the 1981 Act gives the court extra discretion. It can refuse the action, postpone it, or grant it with conditions, taking account of things such as the needs of any children and whether suitable alternative accommodation has been offered.
| Your situation | Can the owner sell alone? | What is usually needed |
|---|---|---|
| Married or civil partners, sole owner, family home | Not in practice | Spouse’s consent or renunciation, or a court order under section 7 |
| Married or civil partners, joint owners | No | Both sign, or an action of division and sale |
| Cohabiting, sole owner | Usually yes | Written declaration; check for any court order and possible financial claims |
| Cohabiting, joint owners | No | Both sign, or an action of division and sale |
| Separated two years or more, spouse not in occupation | Often yes | Written declaration reflecting that occupancy rights have ended |
What happens to the family home in a divorce?
On divorce or dissolution, the Family Law (Scotland) Act 1985 governs financial provision. The net value of matrimonial property is to be shared fairly, which means equally unless special circumstances justify another split. Matrimonial property includes a home bought before the marriage if it was acquired for use as the family home, but not property received as a gift or inheritance.
The value is fixed at the “relevant date”, usually the date you stopped living together. Under section 14, the court can order the sale of property, regulate who lives in the home, and decide who pays the outgoings. Section 18 lets the court set aside transactions made in the previous five years to defeat a claim, although it cannot affect a third party who acquired the property in good faith and for value.
Many couples agree a sale or a transfer between themselves in a separation agreement, which avoids court altogether. Our guide on selling your house during a divorce and our page on how to sell a house quickly during a divorce in Scotland explain the practical options.
What if there is domestic abuse?
If you are experiencing abuse, your safety comes first. Under section 4 of the 1981 Act, a spouse can ask the court for an exclusion order, which suspends the other spouse’s right to occupy the home. The court must grant it if it is necessary to protect the applicant or a child from conduct, or threatened conduct, that is or would be harmful to physical or mental health, unless that would be unjustified or unreasonable. Cohabitants can also apply in certain circumstances.
Free, confidential support is available any time from Scotland’s Domestic Abuse and Forced Marriage Helpline, run by Scottish Women’s Aid, on 0800 027 1234, 24 hours a day. It supports anyone affected by domestic abuse. If you are in immediate danger, call 999.
No one should be pressured into signing a consent or renunciation. The notary requirement exists for exactly this reason, and a notary or solicitor can see you on your own.
How can a cash sale help when you need to sell?
A cash sale does not change the law on occupancy rights. A cash buyer’s solicitor will still need the right matrimonial homes documents, and joint owners will still both need to sign. What a cash sale can do is make the process simpler once you and your spouse or partner have agreed to sell.
- There is no chain and no mortgage approval, so fewer things can derail the sale while emotions are running high.
- There are no viewings, closing dates or long marketing periods, so you do not need to cooperate on showing the house. Our guide on whether you have to set a closing date explains the alternative.
- A cash buyer can buy as seen and lets you choose the date of entry, which can help if one of you needs time to find somewhere new.
- The proceeds go through your solicitors, who repay the mortgage and divide the balance as agreed. Our guide on selling when you still have a mortgage explains how this works.
It may not suit you if the house would sell well on the open market and neither of you is in a hurry, as cash buyers generally offer less than full market value. If debt is also part of the picture, our guide on selling when you are sequestrated or in a trust deed may help, and our guide on staying in your house after selling it covers another route some families consider. Whatever you decide, you will need a solicitor for the sale, as our guide on whether you need a solicitor to sell your house explains, and a family law solicitor should advise on your rights before anything is signed.
Cash offers are available across the country, from the Glasgow area to the Edinburgh area and beyond.
Frequently asked questions
Can my husband or wife sell our house without telling me?
If you own it jointly, no, because you must sign the disposition. If it is in their sole name and it is your family home, you will usually have occupancy rights, and a buyer’s solicitor will ask for your consent or renunciation. A seller who falsely declares there is no spouse with occupancy rights risks serious consequences.
Does my spouse need to sign if the house is a buy to let?
Usually not. Occupancy rights attach to the matrimonial or family home. If the property has never been your family residence, you can normally sign a written declaration saying so, and your spouse’s consent is not needed.
Is an affidavit still needed when selling a house in Scotland?
For a sale, the seller now usually signs a written declaration rather than a sworn affidavit, following changes made by the Family Law (Scotland) Act 2006. A renunciation of occupancy rights must still be sworn or affirmed before a notary public.
I moved out over two years ago. Can my ex stop the sale?
If you are the one who moved out and you are not the owner, your occupancy rights may have ended if you have not lived together or occupied the home for a continuous two years. If you are the owner, the same rule may help you sell. A solicitor can confirm the position on your dates.
Can I sell if I cannot find my spouse?
Yes, potentially. Under section 7 of the 1981 Act, the court can dispense with consent where a spouse cannot be found after reasonable steps have been taken to trace them. Your solicitor will need to show what efforts have been made.
Will cohabitation reform change my rights?
Possibly in future. The Scottish Government consulted on improving cohabitants’ financial rights in 2025 and 2026, but at the time of writing no changes are in force. If you separate now, the current one year time limit for a claim still applies.
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