JEAN FLEMING OR MCWHIRTER v. JAMES MCWHIRTER [2009] ScotSC 126 (14 July 2009)

JEAN FLEMING OR MCWHIRTER v. JAMES MCWHIRTER [2009] ScotSC 126 (14 July 2009)

The defender's averments at common law based on the offer to purchase are irrelevant and excluded from probation. However, the defender has pled sufficient circumstances under section 19 of the 1981 Act—specifically the existence of ongoing divorce proceedings and a crave for property transfer—to put the statutory defence in issue. The court therefore repels the defender's common law defence but allows the statutory defence to proceed to proof.

Citation
[2009] ScotSC 126
Parties
Pursuer: Jean Fleming or McWhirter; Defender: James McWhirter
Jurisdiction
Scotland
Judgment Date
14 July 2009
Procedural Posture
Civil Matrimonial Property / Judgment After Debate on Relevancy and Statutory Defence
Outcome
Defender's common law averments excluded from probation; defender's statutory defence under section 19 allowed to proceed; parties appointed to be heard on expenses and further procedure.
Legal Topics
Division and Sale of Matrimonial Home, Occupancy Rights, Statutory Discretion Under Matrimonial Homes (family Protection) (scotland) Act 1981, Interaction With Divorce Proceedings
Family Law Property Law Division and Sale of Matrimonial Home Occupancy Rights Statutory Discretion Under Matrimonial Homes (family Protection) (scotland) Act 1981 Interaction With Divorce Proceedings

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Parties

Jean Fleming or McWhirter

Pursuer

James McWhirter

Defender

Procedural Posture

Civil Matrimonial Property / Judgment After Debate on Relevancy and Statutory Defence

Legal Issues

  1. 1 Whether the pursuer is entitled to insist on division and sale of the matrimonial home as of right
  2. 2 Whether the defender's offer to purchase the pursuer's share constitutes a relevant defence at common law
  3. 3 Whether the defender has pled a relevant statutory defence under section 19 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981

Ratio Decidendi

The defender's averments at common law based on the offer to purchase are irrelevant and excluded from probation. However, the defender has pled sufficient circumstances under section 19 of the 1981 Act—specifically the existence of ongoing divorce proceedings and a crave for property transfer—to put the statutory defence in issue. The court therefore repels the defender's common law defence but allows the statutory defence to proceed to proof.

Court Disposition

Defender's common law averments excluded from probation; defender's statutory defence under section 19 allowed to proceed; parties appointed to be heard on expenses and further procedure.

Orders

  • Excludes the defender's averments anent a remedy at common law from probation
  • Repels the defender's Pleas in Law 1, 2 and 3