Kennedy v. Kennedy [2004] ScotSC 17 (08 March 2004)

Kennedy v. Kennedy [2004] ScotSC 17 (08 March 2004)

The sheriff erred in law by taking into account increases in value of matrimonial property after the relevant date and by failing to properly apply the statutory principles requiring equal sharing of matrimonial property as at the relevant date in the absence of special circumstances. The sheriff's approach to economic advantage/disadvantage was fundamentally flawed due to lack of quantification and failure to conduct the required balancing exercise. The only proper distribution was an equal division of the net value of matrimonial property as at the relevant date.

Citation
[2004] ScotSC 17
Parties
Pursuer and Appellant: Kennedy; Defender and Respondent: Kennedy
Jurisdiction
Scotland
Judgment Date
08 March 2004
Procedural Posture
Divorce/financial Provision Appeal / Appeal From Sheriff to Sheriff Principal
Outcome
Appeal allowed in part; sheriff's interlocutor varied; decree for payment of capital sum to pursuer; no periodical allowance awarded; no expenses due to or by either party for the appeal.
Legal Topics
Division of Matrimonial Property, Financial Provision on Divorce, Application of Family Law (scotland) Act 1985, Equal Sharing Principle, Economic Advantage/disadvantage, Valuation Date for Matrimonial Property
Family Law Division of Matrimonial Property Financial Provision on Divorce Application of Family Law (scotland) Act 1985 Equal Sharing Principle Economic Advantage/disadvantage Valuation Date for Matrimonial Property

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Parties

Kennedy

Pursuer and Appellant

Kennedy

Defender and Respondent

Procedural Posture

Divorce/financial Provision Appeal / Appeal From Sheriff to Sheriff Principal

Legal Issues

  1. 1 Whether the sheriff erred in law by considering post-relevant date increases in value of matrimonial property when dividing assets under the Family Law (Scotland) Act 1985
  2. 2 Whether the sheriff properly applied the principles in sections 9(1)(a) and 9(1)(b) of the Act
  3. 3 Whether a fair sharing of matrimonial property requires equal division absent special circumstances

Ratio Decidendi

The sheriff erred in law by taking into account increases in value of matrimonial property after the relevant date and by failing to properly apply the statutory principles requiring equal sharing of matrimonial property as at the relevant date in the absence of special circumstances. The sheriff's approach to economic advantage/disadvantage was fundamentally flawed due to lack of quantification and failure to conduct the required balancing exercise. The only proper distribution was an equal division of the net value of matrimonial property as at the relevant date.

Court Disposition

Appeal allowed in part; sheriff's interlocutor varied; decree for payment of capital sum to pursuer; no periodical allowance awarded; no expenses due to or by either party for the appeal.

Orders

  • Recall of sheriff's interlocutor in so far as it repelled the pursuer's fourth plea-in-law, sustained the defender's third plea-in-law, and dismissed the third crave of the initial writ
  • Sustain in part the pursuer's fourth plea-in-law