Appeal in the cause John Bernard Curran against Caroline Theresa Curran (Assisted Person) (Sheriff Appeal Court Civil) [2026] SACCIV 29 (21 April 2026)

Appeal in the cause John Bernard Curran against Caroline Theresa Curran (Assisted Person) (Sheriff Appeal Court Civil) [2026] SACCIV 29 (21 April 2026)

In an action for division and sale of a matrimonial home, it is for the defender to put section 19 of the 1981 Act in issue by making relevant averments and having a supporting plea-in-law. The defender bears the burden of proving the circumstances justifying the court's exercise of discretion to refuse, postpone, or condition decree. The appellant failed to do so; thus, summary decree for the respondent was correct.

Citation
[2026] SACCIV 29
Parties
Pursuer and Respondent: John Bernard Curran; Defender and Appellant: Caroline Theresa Curran
Jurisdiction
Scotland
Judgment Date
21 April 2026
Procedural Posture
Appeal (civil, Division and Sale of Matrimonial Home) / Sheriff Appeal Court Judgment on Appeal From Sheriff's Summary Decree
Outcome
Appeal refused; sheriff's interlocutor adhered to.
Legal Topics
Division and Sale of Matrimonial Home, Matrimonial Homes (family Protection) (scotland) Act 1981 Section 19, Onus of Proof in Statutory Defences, Pleading Requirements for Statutory Defences, Occupancy Rights of Spouses
Family Law Property Law Civil Procedure Division and Sale of Matrimonial Home Matrimonial Homes (family Protection) (scotland) Act 1981 Section 19 Onus of Proof in Statutory Defences Pleading Requirements for Statutory Defences Occupancy Rights of Spouses

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Parties

John Bernard Curran

Pursuer and Respondent

Caroline Theresa Curran

Defender and Appellant

Procedural Posture

Appeal (civil, Division and Sale of Matrimonial Home) / Sheriff Appeal Court Judgment on Appeal From Sheriff's Summary Decree

Legal Issues

  1. 1 Does a defender require relevant averments and a plea-in-law to rely on section 19 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 in an action for division and sale?
  2. 2 Who bears the onus of proof regarding section 19 in such actions?

Ratio Decidendi

In an action for division and sale of a matrimonial home, it is for the defender to put section 19 of the 1981 Act in issue by making relevant averments and having a supporting plea-in-law. The defender bears the burden of proving the circumstances justifying the court's exercise of discretion to refuse, postpone, or condition decree. The appellant failed to do so; thus, summary decree for the respondent was correct.

Court Disposition

Appeal refused; sheriff's interlocutor adhered to.

Orders

  • Cause certified as suitable for employment of junior counsel.
  • Award of expenses in favour of respondent, modified to nil.