McCafferty v McCafferty, 1986 SLT 650
Citation:McCafferty v McCafferty, 1986 SLT 650
Rule of thumb: If a family is going through a divorce, can there be an order for the man to leave the family home? If it can be proven that there is a medical danger issue, and there is no way it can be avoided, then yes, if not then no.
Judgment:
'This case concerned the principle of ‘the family home’ and the formal legal exclusion of one of the parties from it during times of turmoil. The Court held that there was a 4 point test to be considered in assessing whether an exclusion order should be granted. 1. What is the nature of the conduct? 2. Has this type of conduct been repeated? 3. Would this conduct be likely to cause physical or mental injury to the spouse or a child? 4. Is this necessary for the protection of the health of the spouse or child or could a lesser measure suffice?. ‘... would ultimately be injurious to the physical or mental health of the applicant or child... there are 4 questions... 1. What is the nature and quality of the alleged conduct? 2. Is the Court satisfied that the conduct is likely to be repeated if cohabitation continues? 3. Has the conduct been, or if, repeated, would it be injurious to the physical or mental health of the applicant or to any child of the family? 4. If so, is the order sought necessary for the future protection of the physical or mental health of the applicant or child’, Lord Dunpark
Warning: This is not professional legal advice. This is not professional legal education advice. Please obtain professional guidance before embarking on any legal course of action. This is just an interpretation of a Judgment by persons of legal insight & varying levels of legal specialism, experience & expertise. Please read the Judgment yourself and form your own interpretation of it with professional assistance.