Pacitti v. Nicol [2004] ScotSC 2 (09 January 2004)

Pacitti v. Nicol [2004] ScotSC 2 (09 January 2004)

The sheriff principal held that the sheriff had properly exercised his discretion in awarding a periodical allowance and capital sum, having regard to the pursuer's ill health, inability to work, and financial hardship resulting from the divorce. The only error was ambiguity regarding interest on the capital sum, which was clarified to apply only to each instalment as it fell due. The appeal was sustained in part to amend the interlocutor accordingly, but otherwise refused.

Citation
[2004] ScotSC 2
Parties
Pursuer and Respondent: Dawn Evelyn Pacitti or Nicol; Defender and Appellant: Robert Clark Nicol
Jurisdiction
Scotland
Judgment Date
09 January 2004
Procedural Posture
Divorce Action / Appeal From Interlocutor of Sheriff Dated 30 June 2003
Outcome
Appeal sustained in part; interlocutor of 30 June 2003 adhered to subject to amendments regarding the wording of the capital sum order and clarification of interest on instalments.
Legal Topics
Divorce, Financial Provision on Divorce, Periodical Allowance, Capital Sum, Aliment, Interest on Instalments
Family Law Divorce Financial Provision on Divorce Periodical Allowance Capital Sum Aliment Interest on Instalments

Case Brief

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Parties

Dawn Evelyn Pacitti or Nicol

Pursuer and Respondent

Robert Clark Nicol

Defender and Appellant

Procedural Posture

Divorce Action / Appeal From Interlocutor of Sheriff Dated 30 June 2003

Legal Issues

  1. 1 Whether the sheriff erred in awarding a periodical allowance to the pursuer, in the amount and duration of payment, under section 9(1)(d) and (e) of the Family Law (Scotland) Act 1985
  2. 2 Whether the sheriff erred in awarding interest on the whole balance of the capital sum outstanding or only on each instalment
  3. 3 Whether the sheriff erred in the amount and method of payment of the capital sum

Ratio Decidendi

The sheriff principal held that the sheriff had properly exercised his discretion in awarding a periodical allowance and capital sum, having regard to the pursuer's ill health, inability to work, and financial hardship resulting from the divorce. The only error was ambiguity regarding interest on the capital sum, which was clarified to apply only to each instalment as it fell due. The appeal was sustained in part to amend the interlocutor accordingly, but otherwise refused.

Court Disposition

Appeal sustained in part; interlocutor of 30 June 2003 adhered to subject to amendments regarding the wording of the capital sum order and clarification of interest on instalments.

Orders

  • Delete 'DECERNS against the defender for payment to the pursuer of a capital sum of £35,000' and substitute 'FINDS that the pursuer is entitled to payment by the defender of a capital sum of £35,000'
  • Delete the words regarding interest on the whole capital sum and substitute that interest is payable only on each instalment from the date it falls due until payment