Fordyce v. Clark [2007] ScotSC 12 (16 March 2007)

Fordyce v. Clark [2007] ScotSC 12 (16 March 2007)

It is not competent for the court to grant orders for sale of partnership assets under section 14(2)(a) of the Family Law (Scotland) Act 1985 where such assets are held by the partnership and must be dealt with according to the partnership agreement and section 20(1) of the Partnership Act 1890. However, where both partners consent to the sale of a partnership asset, such as the farm, the court may grant an incidental order for its sale and division of proceeds. The defender's consent to the order for sale of the farm constituted a variation of the partnership agreement, making the order competent.

Citation
[2007] ScotSC 12
Parties
Pursuer: Patricia Fordyce or Burton or Clark; Defender: Allan Alfred Clark
Jurisdiction
Scotland
Judgment Date
16 March 2007
Procedural Posture
Divorce Action / Appeal Against Interlocutor Dated 24 August 2006
Outcome
Both appeals refused; interlocutor of 24 August 2006 adhered to; cross-appeal not dealt with; expenses reserved.
Legal Topics
Division of Matrimonial Property, Incidental Orders, Competency of Orders, Partnership Assets in Divorce
Family Law Partnership Law Division of Matrimonial Property Incidental Orders Competency of Orders Partnership Assets in Divorce

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Parties

Patricia Fordyce or Burton or Clark

Pursuer

Allan Alfred Clark

Defender

Procedural Posture

Divorce Action / Appeal Against Interlocutor Dated 24 August 2006

Legal Issues

  1. 1 Whether it is competent to grant an incidental order for sale of partnership assets under section 14(2)(a) of the Family Law (Scotland) Act 1985
  2. 2 Whether the defender is entitled to recall the incidental order for sale of the farm
  3. 3 Effect of partnership agreement on division of assets in divorce

Ratio Decidendi

It is not competent for the court to grant orders for sale of partnership assets under section 14(2)(a) of the Family Law (Scotland) Act 1985 where such assets are held by the partnership and must be dealt with according to the partnership agreement and section 20(1) of the Partnership Act 1890. However, where both partners consent to the sale of a partnership asset, such as the farm, the court may grant an incidental order for its sale and division of proceeds. The defender's consent to the order for sale of the farm constituted a variation of the partnership agreement, making the order competent.

Court Disposition

Both appeals refused; interlocutor of 24 August 2006 adhered to; cross-appeal not dealt with; expenses reserved.

Orders

  • Refusal of pursuer's appeal against dismissal of craves 5 and 6
  • Refusal of defender's appeal for recall of interlocutor dated 29 November 2005