MacDonnell v Stobo Or MacDonnell [2001] ScotCS 105 (4 May 2001)

MacDonnell v Stobo Or MacDonnell [2001] ScotCS 105 (4 May 2001)

The existence of a post-decree contractual agreement regarding periodical allowance does not render incompetent an application to vary the original court order for periodical allowance. The court retains the power to vary its own orders under statute, and the parties' agreement, while relevant to the merits, does not preclude the court's jurisdiction or render the application incompetent.

Citation
[2001] ScotCS 105
Parties
Pursuer and Respondent: James Joseph MacDonnell; Defender and Appellant: Elizabeth Thomson Stobo or MacDonnell
Jurisdiction
Scotland
Judgment Date
04 May 2001
Procedural Posture
Appeal / Appeal From Sheriff Principal's Interlocutor Allowing Proof Before Answer After Recalling Sheriff's Dismissal for Incompetency
Outcome
Appeal refused; sheriff principal's decision affirmed.
Legal Topics
Divorce, Periodical Allowance, Variation of Court Orders, Contractual Agreements Post Decree
Family Law Divorce Periodical Allowance Variation of Court Orders Contractual Agreements Post Decree

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Parties

James Joseph MacDonnell

Pursuer and Respondent

Elizabeth Thomson Stobo or MacDonnell

Defender and Appellant

Procedural Posture

Appeal / Appeal From Sheriff Principal's Interlocutor Allowing Proof Before Answer After Recalling Sheriff's Dismissal for Incompetency

Legal Issues

  1. 1 Whether a post-decree contractual agreement between divorced parties regarding periodical allowance precludes the court's power to vary the original court order for periodical allowance under section 5(4) of the Divorce (Scotland) Act 1976
  2. 2 Whether the existence of such an agreement renders an application for variation of the original decree incompetent

Ratio Decidendi

The existence of a post-decree contractual agreement regarding periodical allowance does not render incompetent an application to vary the original court order for periodical allowance. The court retains the power to vary its own orders under statute, and the parties' agreement, while relevant to the merits, does not preclude the court's jurisdiction or render the application incompetent.

Court Disposition

Appeal refused; sheriff principal's decision affirmed.

Orders

  • Refusal of appeal by Mrs. MacDonnell
  • Sheriff principal's interlocutor allowing proof before answer stands