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Appeal court rejects separate divorce treatment of house and land

26 February 2018

A sheriff erred in treating a house separately from the land on which it was built in deciding what was matrimonial property, the Sheriff Appeal Court has ruled.

The court reversed a decision of Sheriff W H Summers at Aberdeen, who held that a plot of land owned by William Grant before he met his wife Gail was not matrimonial property but that the house built on it, allegedly for use as a family home, could be (click here for report).

Sheriff Principal Craig Turnbull, Sheriff William Holligan and Sheriff Ray Small agreed that if the wife established her case that the house was intended for use as a family home, both it and the land would be matrimonial property, an issue which was separate from technical questions of ownership.

Neither party supported the sheriff's ruling, but the husband argued on appeal that  as the land was not matrimonial property, and as the house became part of the land by the principle of accession when it was built on the land, the house also was not matrimonial property.

Sheriff Principal Turnbull, who gave the opinion of the court, said that in terms of the Family Law (Scotland) Act 1985 it was the "value" of matrimonial property that was to be shared, and the term “matrimonial property” was not one derived from property law but was "a creation of the 1985 Act which exists to give effect to those parts of that Act which deal with financial provision".

Here the property in question comprised both the house and the land on which it was erected. It was a single item of property which belonged to the husband at the relevant date. However this single item of property "can only have been 'acquired' as and when the house was completed".

"The appellant seeks to approach the matter as one of property law", the sheriff principal continued. "It is not. The property was, on the respondent’s averments, acquired by the appellant before the marriage for use by the parties as a family home. The law of accession regulates ownership of the property in question; it does not affect whether or not that property is matrimonial property for the purposes of the 1985 Act."

He concluded: "In the unusual factual circumstances of the present case, in our opinion, the pursuer has averred sufficient to warrant inquiry as to whether the disputed property is matrimonial property. It should be borne in mind that the identification of matrimonial property is but one step in determining what orders for financial provision should be made. The 1985 Act gives to the sheriff certain discretionary powers to ensure a division that is equitable to both parties."

Click here to view the opinion of the court.


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