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Sheriff takes middle way in matrimonial property dispute over built house

20 June 2017

A family home that was built on ground belonging to one of the parties to a marriage but which was not matrimonial property, could be valued separately from the ground for the purposes of calculating financial provision on divorce, a sheriff has ruled.

Sheriff W H Summers gave his decision at Aberdeen Sheriff Court in the case of GG (the wife) against WG (the husband), where the pursuer sought a capital payment of £200,000.

A debate took place on the relevance of the pursuer’s averments in relation to a heritable property. The pursuer’s case was that said property was matrimonial property; the defender’s position was that it was not.

The defender had purchased a plot of land in 1994, before the parties' relationship began. A house was built on the plot in 1997, after the relationship began but before they married. The pursuer averred the house was acquired as a family home, which was disputed.

The pursuer accepted that the house acceded to the land and that the defender was the owner of the house and the land, but argued that what was important was whether the house was a family home, when it was acquired and what the parties' intention was. At the date of separation there was a house on the plot which had been occupied by the parties and their children for more than 10 years, and the effect of building the family home on the plot had been to convert the plot to matrimonial property.

For the defender it was argued that neither the land nor the house were matrimonial property. As the house had been built on non-matrimonial land, the house was also non-matrimonial: on accession to the land, the house became indivisible from that land.

Sheriff Summers rejected the argument for the pursuer that the land converted to matrimonial property with the accession of the house, but also rejected the defender’s position that the house, having acceded to the land, became indivisible from it and so could not be matrimonial property.

The Family Law (Scotland) Act, he said, "defined 'matrimonial property' in a particular way but by reference to the acquisition of that property rather than ownership of the property by either party. I accept unreservedly the submission for the defender that when the house was built upon the plot of land, the house acceded to the land. I accept that it then came to be owned by the defender. What I do not accept is that in consequence of that the house ceased to be matrimonial property".

In his view it was "open to the pursuer to argue that the blocks, timber, pipework, cabling and other building materials that came to represent the physical house, or 'family home', were matrimonial property whereas the land on which the house was built was not and never became such".

While there might be a practical difficulty in terms of valuing the house separately from the land, one way to deal with that would be to have the house and land valued, and at the same time instruct a separate valuation of the land assuming the house was undeveloped.

It followed that the pursuer had a relevant case, subject to exclusion of certain of her averments from proof.

Click here to view the sheriff's judgment.