Cronin Macinnes or Smith v Smith [2009] ScotCS CSOH_02 (06 January 2009)

Cronin Macinnes or Smith v Smith [2009] ScotCS CSOH_02 (06 January 2009)

Given the pursuer's age, poor health, lack of earning capacity, and long-term financial dependence, and the marked difference in post-divorce resources, a periodical allowance is justified under sections 9(1)(d) and 9(1)(e) of the 1985 Act. The capital sum should be the free proceeds of sale of the matrimonial home, not a fixed sum, due to market uncertainty.

Citation
[2009] ScotCS CSOH_02
Parties
Pursuer: Ruth Cronin Macinnes or Smith; Defender: Colin Andrew Smith
Jurisdiction
Scotland
Judgment Date
06 January 2009
Procedural Posture
Divorce / Final Judgment After Proof
Outcome
Decree of divorce granted. Orders for sale of matrimonial home, vesting free proceeds in pursuer. Periodical allowance awarded.
Legal Topics
Divorce, Financial Provision, Periodical Allowance, Matrimonial Property, Clean Break Principle
Family Law Divorce Financial Provision Periodical Allowance Matrimonial Property Clean Break Principle

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Parties

Ruth Cronin Macinnes or Smith

Pursuer

Colin Andrew Smith

Defender

Procedural Posture

Divorce / Final Judgment After Proof

Legal Issues

  1. 1 Whether a clean break should be ordered or ongoing periodical allowance awarded after division of matrimonial property
  2. 2 How the capital sum should be determined given the depressed property market
  3. 3 Whether further periodical allowance is justified under serious financial hardship provisions

Ratio Decidendi

Given the pursuer's age, poor health, lack of earning capacity, and long-term financial dependence, and the marked difference in post-divorce resources, a periodical allowance is justified under sections 9(1)(d) and 9(1)(e) of the 1985 Act. The capital sum should be the free proceeds of sale of the matrimonial home, not a fixed sum, due to market uncertainty.

Court Disposition

Decree of divorce granted. Orders for sale of matrimonial home, vesting free proceeds in pursuer. Periodical allowance awarded.

Orders

  • Order for sale of former matrimonial home with free proceeds to pursuer
  • Periodical allowance of £2,000 per month for three years from decree, plus £500 per month until sale of home