MALCOLM SOUTAR v. MARK McAULEY [2010] ScotSC 65 (31 March 2010)

MALCOLM SOUTAR v. MARK McAULEY [2010] ScotSC 65 (31 March 2010)

Having considered all statutory criteria and the evidence, the court found little to distinguish the parties in terms of suitability, financial resources, or conduct, but preferred the defender as the less troublesome neighbour and to facilitate his contact with his daughter. The defender was therefore vested with the tenancy.

Citation
[2010] ScotSC 65
Parties
Pursuer: Malcolm Souter; Defender: Mark John Francis McAuley
Jurisdiction
Scotland
Judgment Date
31 March 2010
Procedural Posture
Ordinary Action (civil) / Final Judgment After Proof
Outcome
Tenancy vested in defender; pursuer's application refused.
Legal Topics
Cohabitation, Joint Tenancy, Vesting of Tenancy, Matrimonial Homes (family Protection) (scotland) Act 1981, Civil Partnership Act 2004
Family Law Housing Law Cohabitation Joint Tenancy Vesting of Tenancy Matrimonial Homes (family Protection) (scotland) Act 1981 Civil Partnership Act 2004

Case Brief

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Parties

Malcolm Souter

Pursuer

Mark John Francis McAuley

Defender

Procedural Posture

Ordinary Action (civil) / Final Judgment After Proof

Legal Issues

  1. 1 Whether the tenancy of 5F Abbotsford Street, Dundee, should be vested in the pursuer or defender following the breakdown of their cohabitation as joint tenants.
  2. 2 Application of the Matrimonial Homes (Family Protection) (Scotland) Act 1981, sections 13 and 18, to cohabiting same-sex couples.

Ratio Decidendi

Having considered all statutory criteria and the evidence, the court found little to distinguish the parties in terms of suitability, financial resources, or conduct, but preferred the defender as the less troublesome neighbour and to facilitate his contact with his daughter. The defender was therefore vested with the tenancy.

Court Disposition

Tenancy vested in defender; pursuer's application refused.

Orders

  • Repels the pleas-in-law for the pursuer.
  • Sustains the first and second pleas-in-law for the defender.