This is the first time that the financial provisions of the Family Law (Scotland )Act† 2006 for co habitants have been judicially considered. In this action the pursuer seeks an order in terms of section 28(2)(a) of the Family Law (Scotland) Act 2006 for payment of £50,000 and an order in terms of section 28(2)(b) of that Act for payment by the defender of £20,000.
The Sheriff found that the terms of a Minute of Agreement between the parties dated 1 July 2003 and registered 8 July 2003 as to financial provision were not fair and reasonable at the time it was entered into by reason of the defender's failure to divulge his re-dress payment of ķ16,059.53 from London Life Limited which formed part of the matrimonial property at the relevant date. She found the pursuer entitled to an order in terms of section 16(1)(b) of the Family Law (Scotland) Act 1985 setting aside all terms of the agreement as to financial provision. The appellant argued that, to allow a conclusion to be reached that the terms of the Agreement were unfair and unreasonable at the time it was entered into, it was necessary for the Sheriff to make findings in fact anent the value of the matrimonial property at the relevant date. In the absence of such findings there was no proper basis on which she could conclude that the terms of the agreement were unfair and unreasonable. A further ground of appeal stated:- "Further and in any event in the circumstances the additional policy no 80379701 was not matrimonial property and the learned Sheriff erred in law in so concluding." It was submitted on behalf of the pursuer and respondent that the policy did form part of the matrimonial property and the failure to divulge it was sufficient to allow the Minute of Agreement to be set aside. The appeal considered:- (1) was the policy an item of matrimonial property in terms of the Family Law (Scotland) Act 1985 (2) was the Minute of Agreement between the parties not fair and reasonable at the time it was entered into by reason of the defender and appellant's failure to divulge this policy as part of the matrimonial property at the relevant date, namely 11 August 2000 (3) if the answer to these two questions is "yes", was the pursuer and the respondent entitled to an order in terms of section 16(1)(b) of the Family Law (Scotland) Act 1985 settin! g aside all the terms of the agreement as to financial provision?
Matrimonial:- On 23 June 1990 the parties married. At that time, the pursuer was aged 49 and had been married before. She was a school biology and chemistry teacher by profession until she retired in 2000. The defender was 46 and had never married and had been living in Aberdeen as a pharmacist, operating two shops. He was comfortably well off as a bachelor. In this action the pursuer sought capital sum of amounting to one half of the matrimonial property notwithstanding the capital which the defender had at the commencement of the marriage. It was maintained that the pursuer had made a significant contribution to the pharmacy and the development of the properties. It was also maintained that the defender had not suffered any economic disadvantage in moving to Coupar Angus and had made no significant contribution to the pursuer's sons. It was submitted on behalf of the pursuer that equal sharing was the appropriate result. It was submitetd on behalf of the defender that, having regard to the source of the funds or assets, special circumstances existed to justify an unequal sharing of the matrimonial property. It was submitted that any contributions made by the pursuer were heavily outweighed by those of the defender, especially in terms of the pharmacy business existing at the time of the marriage and built up by the defender since then. Here the court considered whether special circumstances existed to justify an unequal sharing of the matrimonial property.
Here the pursuer sought decree of divorce from the defender in respect that the marriage has broken irretrievably by reason of the defender's behaviour and the defender sought a capital sum of £350,000. The main disputerelated to the defender's claim for a capital sum. There was, however, agreement between the parties that the date of separation for the purposes of ascertaining the nature and extent of matrimonial property was 5 November 2001. There were two issues:- (1) whether the increase in the balance on the pursuer's capital account in the firm of Messrs Marshall & Sons from the date of marriage to the date of separation was matrimonial property and (2) whether the pursuer's interest in heritable property at Hangingshaw and Heriot Toun was matrimonial property. The court here considered the level of capital sum to be paid to the defender.
In this action the pursuer sought:- (1) decree of divorce; (2) an order for sale of the former matrimonial home; (3) a capital sum payable on the sale of the former matrimonial home; and (4) a periodical allowance.
The Defender was appointed Executrix Dative for the estate of her half-brother (the deceased). The Pursuer had co-habited with the deceased for about 2 Ĺ years before his death but they had not entered into a civil partnership. The deceased died intestate and without issue. He was survived only by the Defender. Section 29 of the Family Law (Scotland) Act 2006 allows an application to be made by a surviving cohabitant where the deceased cohabitant died intestate and was domiciled in Scotland for an order for payment of a capital sum from the deceasedís net intestate estate or for transfer of property. The Court has discretion in making such an order, having regard to a number of matters set out in Section 29(3). The Pursuer sought payment of the deceasedís entire net intestate estate or, alternatively, an order for transfer of heritable property. Following the deceasedís death, the Pursuer had received a half share of the lump sum death benefit payable from the deceasedís employersí pension scheme. The other half was paid to the Defender as the deceasedís half-sister. The Pursuer also received an adult dependentís pension from the pension scheme. The Pursuer argued that, in exercising its discretion in terms of Section 29, the Court should not take into account the period of co-habitation or length of co-habitation. While the Defender accepted that the Pursuer qualified to make an application under Section 29, she argued that no award should be made standing the sums already received by the Pursuer. The Defender argued that the duration of the relationship was relevant, particularly having regard to the significant benefits received by the Pursuer as a result of that relationship. The Sheriff held that the Pursuer and the deceased were co-habitants in terms of Section 25 of the 2006 Act and that, immediately before his death, the deceased was domiciled in Scotland. The Pursuer was entitled to make a claim in terms of the 2006 Act but, having regard to the provisions of Section 29(2)(3)(4) and (10), the quantum of the said claim was assessed at nil. The Sheriff found the Pursuer to have been a witness of limited credibility and reliability. He had tried to minimise the role of the Defender in the deceasedís life and to mislead the Court in an attempt to support his claim to the deceasedís net intestate estate. The Sheriff accepted the Defenderís evidence about her relationship with the deceased who had been a much loved and missed sibling. The Pursuer had benefited from a considerably enhanced standard of living while during his relationship the deceased, including significant gifts, rent free accommodation, holidays and the opportunity to change his career and he had been well provided for following the deceasedís death. Decree of Absolvitor was granted. It was suggested that this was the first decided litigation in this area and, on that basis, a fair approach would be to award no expenses to or by either party.
Sheriff Principal MacPhail QC put forward†an interesting†point regards the economic burden of caring for children in terms of section 9(1)(c) of the Family Law (Scotland) Act 1985 where no aliment had been paid and whether this should be taken into account in respect of division of the matrimonial assets.
At point 7 he noted:
"In my opinion these averments are wholly misconceived. Section 9(1)(c) is concerned with 'any economic burden of caring, after divorce, for a child of the marriage under the age of 16 years'. There are no children of the marriage under 16 years".
This point has subsequently been used when similar contention has arisen.