Registering rights derived from acts between spouses
Would the Land Registry make changes in ownership’s entry (proprietorship) on the bases of acts performed between the spouses?
We will make changes to the proprietorship section of a title sheet when a deed of transfer is submitted for registration in the land register. Typically, this will be a disposition, in the case of ownership, or an assignation in respect of a long lease. A transfer required by means of a court decision, or an agreement between spouses which contains a transfer element, could also be used to make changes in the proprietorship section.
We cannot offer legal advice on the drafting of deeds, however, a deed of transfer must be drafted in line with Scots law and comply with the Requirements of Writing (Scotland) Act 1995.
When a deed of transfer is received for registration in the land register we are not required to check the rights of married persons and registered partners. We rely on the applicant certifying that the deed of transfer is valid. The applicant and submitting agent have a statutory duty of care not to make the land register inaccurate.
There is no difference in the registration process when a deed of transfer relates to a foreign national, or if the matrimonial property regime affecting a party to the deed is governed by a foreign law.
Agreements are capable of registration in the Register of Deeds in the Books of Council and Session. That is a general register, separate to the land register, where deeds can be registered for preservation and safekeeping. Deeds registered in that register will not modify the proprietorship section of a title sheet in the land register
Practical case 1
Paul and Mary married and they both own jointly an immovable property registered as such in your land book. Following a divorced between them, the property will become of exclusive ownership of Mary;
a) by means of the Court decision,
b) by an agreement between spouses in order the liquidation of their common assets.
The means of transferring exclusive ownership to one spouse would be by means of a deed registered in the land register. Typically, this would be the case regardless of whether the transfer was compelled by means of a court decision or voluntarily through agreement between the parties.
The same process would apply in respect of a married couple and civil partners.
Practical case 2
Paul is the registered owner of an immovable property acquired by succession. Sometime after his registration, Paul marries Mary and decides that the property will be in the common ownership of both spouses, so they perform the transmission act by a matrimonial property agreement according to the applicable law.
A deed conveying a share in the real right to the property would be registered in the land register.
The relevant document would typically be a disposition in the case of ownership or an assignation of lease in respect of a long lease.
The same process would apply in respect of a married couple and civil partners.
