KELLY RODGER OR FINDLAY v. ALASDAIR RUSSELL FINDLAY [2014] ScotSC 55 (21 March 2014)

KELLY RODGER OR FINDLAY v. ALASDAIR RUSSELL FINDLAY [2014] ScotSC 55 (21 March 2014)

The sheriff erred in law by failing to properly apply the statutory presumption of equal sharing of matrimonial property and by considering irrelevant statutory provisions. The correct approach required consideration of the pursuer's entitlement to a share in the matrimonial home and a discretionary, fair allocation of the capital sum, resulting in an increased award to the pursuer.

Citation
[2014] ScotSC 55
Parties
Pursuer: Kelly Rodger or Findlay; Defender: Alasdair Russell Findlay
Jurisdiction
Scotland
Judgment Date
21 March 2014
Procedural Posture
Family Law Appeal / Appeal From Sheriff's Interlocutor Regarding Capital Payment in Divorce Proceedings
Outcome
Appeal allowed in part; sheriff's interlocutor recalled in respect of capital payment; new order substituted.
Legal Topics
Division of Matrimonial Property, Capital Payment on Divorce, Application of Family Law (scotland) Act 1985, Judicial Discretion in Financial Provision
Family Law Division of Matrimonial Property Capital Payment on Divorce Application of Family Law (scotland) Act 1985 Judicial Discretion in Financial Provision

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Parties

Kelly Rodger or Findlay

Pursuer

Alasdair Russell Findlay

Defender

Procedural Posture

Family Law Appeal / Appeal From Sheriff's Interlocutor Regarding Capital Payment in Divorce Proceedings

Legal Issues

  1. 1 Whether the sheriff erred in applying the Family Law (Scotland) Act 1985 in determining the capital sum payable to the pursuer
  2. 2 Whether special circumstances justified a departure from equal sharing of matrimonial property
  3. 3 Whether the sheriff considered the parties' resources appropriately

Ratio Decidendi

The sheriff erred in law by failing to properly apply the statutory presumption of equal sharing of matrimonial property and by considering irrelevant statutory provisions. The correct approach required consideration of the pursuer's entitlement to a share in the matrimonial home and a discretionary, fair allocation of the capital sum, resulting in an increased award to the pursuer.

Court Disposition

Appeal allowed in part; sheriff's interlocutor recalled in respect of capital payment; new order substituted.

Orders

  • Order for capital payment of £50,000 to pursuer with interest at 8% per annum from date of citation until payment.
  • Defender found liable to pursuer in expenses of the appeal.