Matrimonial property disputes

Your client’s statement should provide details of:

• Reasons for seeking division or sale
• The property concerned
• Co-proprietors
• Benefit to your client if the order is granted.

Supporting information should include:

• Evidence of joint ownership – for example, a copy of the title deeds or mortgage statement
• Evidence of the opponent’s unwillingness to agree to division or sale.

In actions involving spouses or civil partners the court may refuse to grant an order for division and sale or postpone an order for as long as it considers reasonable.  These provisions cannot be invoked after the dissolution of the marriage or civil partnership.

In such cases the information provided must show the marriage or civil partnership is still in existence and provide details of:

• The conduct of the spouses or civil partners and their needs and resources
• The needs of any child of the family
• Any business use made of the home and
• Whether suitable alternative accommodation has been offered.

Applications to pursue

To establish probable cause there must be evidence that your client is either:

• Married to, or is a civil partner of, the person they are seeking to exclude.
• A cohabitee who has or is seeking in the same proceedings a declarator of occupancy rights or is an entitled cohabitee or permitted to occupy the home by a third party

You need to show that such an order is necessary to protect your client or a child of the family from the opponent’s conduct which is or would be injurious to physical or mental health.

We will take into account:

• The conduct of the parties towards each other
• Their respective needs and financial resources
• The needs of any child of the parties
• The extent to which the home and furnishings are connected with a trade, business or profession of either party
• If the entitled spouse, civil partner or cohabitee offers or has offered to make available any suitable alternative accommodation
• where the home is, or is part of, an agricultural holding or is let, or is a home where possession is given to the non-applicant spouse, civil partner or cohabitee or to both spouses, civil partners or cohabitees by an employer as an incident of employment subject to a requirement of residence, that requirement and the likely consequences of the exclusion of the opponent from the home.

Your client’s statement must:

• Address whether they are an entitled spouse, civil partner or cohabitee or permitted to live in the home by a third party
• Confirm, if they are a non-entitled spouse or civil partner that the opponent is their entitled spouse or civil partner
• Confirm, if they are a non-entitled cohabitee, that they have, or are seeking in the same proceedings, a declarator of occupancy rights
• Address why such an order is thought necessary to your client and/or a child or children of the family from conduct of the opponent
• Give details of this conduct
• Show that all other steps have been taken or are inappropriate in this case and the necessity of court action.

Supporting evidence can include:

• A statement from third party witness. Such statements should make clear which incidents the witness has directly witnessed and which incidents are hearsay.
• A statement from an agency such as the Social Work Department or police confirming the conduct complained of
• A report from a doctor, health visitor etc.

If enough evidence has been provided for an exclusion order, your client does not need to give any further information where the following additional remedies are requested:

• An interdict prohibiting the opponent from entering the home
• Warrant for summary ejection of the opponent
• An interdict prohibiting the removal by the opponent of furniture and plenishings
• An interdict prohibiting the opponent entering or remaining in the vicinity of the home.

Applications to defend

To satisfy us on probable cause we expect your client to:

• Provide a full answer to all the pursuer’s averments, with a clear explanation why the order must be defended
• Show that an exclusion order is unjustified or unreasonable in all the circumstances of the case and address the factors listed

Where your client denies particularly serious conduct or threatened or reasonably apprehended conduct and/or has no alternative accommodation, the test of reasonableness may readily be satisfied.

Your client’s statement should:

• Make it clear if they deny the allegations about conduct in whole or in part and explain the nature and extent of the defence.
• Explain fully how the exclusion order will affect them

You should produce supporting evidence, such as a statement by a third party.  If it is not available, explain why not.  You should produce a copy of the initial writ or counterclaim seeking the exclusion order.

If you produce sufficient evidence, to defend the exclusion order sought you do not need to provide further information on other ancillary orders, such as:

• An interdict prohibiting your client from entering the home
• A warrant for summary ejection
• An interdict prohibiting your client from removing furniture and possessions
• An interdict prohibiting your client from entering or remaining in the vicinity of the home