W v M [2015] ScotSC SC_72 (25 November 2015)

W v M [2015] ScotSC SC_72 (25 November 2015)

The sheriff was entitled to find that the pursuer suffered economic disadvantage and the defender gained economic advantage from payments made by the pursuer, including those made prior to cohabitation, in terms of section 28 of the 2006 Act. The sheriff exercised discretion appropriately, gave fair notice, and made findings supported by evidence. The appeal is refused and the sheriff's interlocutor adhered to, with a minor adjustment to the findings regarding the source of funds.

Citation
[2015] ScotSC SC_72
Parties
Pursuer and Respondent: W; Defender and Appellant: M
Jurisdiction
Scotland
Judgment Date
25 November 2015
Procedural Posture
Appeal (family Law Cohabitation) / Judgment on Appeal
Outcome
Appeal refused; sheriff's interlocutor adhered to with minor adjustment.
Legal Topics
Cohabitation, Economic Advantage/disadvantage, Financial Provision on Relationship Breakdown, Section 28 Family Law (scotland) Act 2006
Family Law Cohabitation Economic Advantage/disadvantage Financial Provision on Relationship Breakdown Section 28 Family Law (scotland) Act 2006

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Parties

W

Pursuer and Respondent

M

Defender and Appellant

Procedural Posture

Appeal (family Law Cohabitation) / Judgment on Appeal

Legal Issues

  1. 1 Whether the sheriff erred in law in finding economic advantage to the defender and economic disadvantage to the pursuer under section 28 of the Family Law (Scotland) Act 2006
  2. 2 Whether payments made prior to cohabitation can be considered in assessing economic advantage/disadvantage
  3. 3 Whether the sheriff erred in admitting and relying on expert evidence not incorporated in pleadings

Ratio Decidendi

The sheriff was entitled to find that the pursuer suffered economic disadvantage and the defender gained economic advantage from payments made by the pursuer, including those made prior to cohabitation, in terms of section 28 of the 2006 Act. The sheriff exercised discretion appropriately, gave fair notice, and made findings supported by evidence. The appeal is refused and the sheriff's interlocutor adhered to, with a minor adjustment to the findings regarding the source of funds.

Court Disposition

Appeal refused; sheriff's interlocutor adhered to with minor adjustment.

Orders

  • Defender to pay pursuer £46,214.
  • Defender liable to pursuer for expenses of appeal, except for the hearing on 13 February 2015 and preparation, which are to be paid by the defender’s agent personally.