TRUDI ELISABETH HOPE OR DUNCAN v. ROBERT DUNCAN [2012] ScotSC 44 (29 March 2012)

TRUDI ELISABETH HOPE OR DUNCAN v. ROBERT DUNCAN [2012] ScotSC 44 (29 March 2012)

The defender failed to aver that the property was a matrimonial home as defined by the 1981 Act or facts that would bring it within that definition. In the absence of such averment, no relevant statutory defence under section 19 could be established. The defences were irrelevant and lacking specification; decree de plano was granted for the pursuer.

Citation
[2012] ScotSC 44
Parties
Pursuer: Trudi Elisabeth Hope or Duncan; Defender: Robert Duncan
Jurisdiction
Scotland
Judgment Date
29 March 2012
Procedural Posture
Action for Sale of Heritable Property (division and Sale) / Judgment After Debate on Relevancy of Defences
Outcome
Defender's pleas-in-law repelled; decree de plano granted in terms of Crave 1 for the pursuer; further consideration of remaining craves and expenses continued to a later hearing.
Legal Topics
Division and Sale of Heritable Property, Matrimonial Homes (family Protection) (scotland) Act 1981, Judicial Discretion in Property Sale, Specification of Pleadings
Property Law Family Law Division and Sale of Heritable Property Matrimonial Homes (family Protection) (scotland) Act 1981 Judicial Discretion in Property Sale Specification of Pleadings

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Parties

Trudi Elisabeth Hope or Duncan

Pursuer

Robert Duncan

Defender

Procedural Posture

Action for Sale of Heritable Property (division and Sale) / Judgment After Debate on Relevancy of Defences

Legal Issues

  1. 1 Whether the defender's averments constitute a relevant defence to an action for division and sale of heritable property owned pro indiviso
  2. 2 Whether section 19 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 applies in the absence of averment that the property is a matrimonial home

Ratio Decidendi

The defender failed to aver that the property was a matrimonial home as defined by the 1981 Act or facts that would bring it within that definition. In the absence of such averment, no relevant statutory defence under section 19 could be established. The defences were irrelevant and lacking specification; decree de plano was granted for the pursuer.

Court Disposition

Defender's pleas-in-law repelled; decree de plano granted in terms of Crave 1 for the pursuer; further consideration of remaining craves and expenses continued to a later hearing.

Orders

  • Decree de plano granted for sale of the heritable subjects at 17 Stevenson Street, Grangemouth, in terms of Crave 1.
  • Further hearing assigned for remaining craves and expenses.