Divorced husband stops wife's sequestration bid
5 Aug 05
Late interdict granted to permit challenge to divorce decree
A divorced husband yesterday won an interim interdict to prevent his ex-wife sequestrating him over her financial award.
Lord Hodge in the Court of Session granted the order in favour of John Aitken against his former wife Isabella in Mr Aitken's action for reduction of the divorce decree granted in May this year. Mr Aitken alleges that the service of the amended writ in the divorce action, which introduced financial claims, was defective and that the factual information put before the sheriff in support of the claims for a capital sum and periodical allowance was incomplete and inaccurate.
The judge commented that Mr Aitken had left it very late to seek to stop the sequestration process. He raised his action only on 1 August, long after the days of the charge for payment, served on him on 31 May, had expired. An application for his sequestration had been presented at Linlithgow Sheriff Court, where Mr Aitken had been cited to appear on 3 August.
However Lord Hodge held that exceptional circumstances existed to make interim interdict appropriate. Suspending the charge would not help because Mr Aitken was now apparently insolvent and could be sequestrated. He had undertaken to consign the sum of £36,000 to cover his wife's claim for a capital sum and expenses, which provided sufficient security. He had also pled a prima facie case that the grant of the decree of divorce with the orders for financial provision was defective. As Mrs Aitken's interests could be secured by consignation, and the cost of sequestration and an application for its recall could be avoided, the balance of convenience favoured the grant of interim interdict.
As about £24,000 of the sum which Mr Aitken undertook to consign was held in a bank account which Mrs Aitken had arrested, the order to consign the money would be restricted by the amount in the account if Mrs Aitken did not consent to the arrestment being released.
Lord Hodge's opinion can be read at http://www.scotcourts.gov.uk/opinions/2005CSOH105.html .