Nolan v. Macdonald [2009] ScotSC 35 (30 March 2009)

Nolan v. Macdonald [2009] ScotSC 35 (30 March 2009)

The Sheriff Principal held that the Sheriff was entitled to find that the terms of the Minute of Agreement were not fair and reasonable at the time it was entered into due to the defender's coercion of the pursuer and failure to disclose relevant financial information. However, the Sheriff erred in setting aside the agreement at the preliminary stage, as such an order can only be made upon granting decree of divorce. The Sheriff Principal amended the interlocutor to reflect that the agreement was not fair and reasonable but did not set it aside at this stage.

Citation
[2009] ScotSC 35
Parties
Pursuer and Respondent: Jacqueline Elizabeth Nolan or MacDonald; Defender and Appellant: William James MacDonald
Jurisdiction
Scotland
Judgment Date
30 March 2009
Procedural Posture
Divorce and Financial Provision / Appeal From Preliminary Proof Interlocutor
Outcome
Appeal upheld in part and refused in part
Legal Topics
Divorce, Financial Provision on Divorce, Minute of Agreement, Coercion, Disclosure of Assets, Fairness and Reasonableness of Agreements
Family Law Divorce Financial Provision on Divorce Minute of Agreement Coercion Disclosure of Assets Fairness and Reasonableness of Agreements

Case Brief

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Parties

Jacqueline Elizabeth Nolan or MacDonald

Pursuer and Respondent

William James MacDonald

Defender and Appellant

Procedural Posture

Divorce and Financial Provision / Appeal From Preliminary Proof Interlocutor

Legal Issues

  1. 1 Whether the Minute of Agreement between the parties as to financial provision was fair and reasonable at the time it was entered into
  2. 2 Whether the defender coerced the pursuer into signing the Minute of Agreement
  3. 3 Whether the defender failed to disclose assets, liabilities, and accounts relevant to the financial provision

Ratio Decidendi

The Sheriff Principal held that the Sheriff was entitled to find that the terms of the Minute of Agreement were not fair and reasonable at the time it was entered into due to the defender's coercion of the pursuer and failure to disclose relevant financial information. However, the Sheriff erred in setting aside the agreement at the preliminary stage, as such an order can only be made upon granting decree of divorce. The Sheriff Principal amended the interlocutor to reflect that the agreement was not fair and reasonable but did not set it aside at this stage.

Court Disposition

Appeal upheld in part and refused in part

Orders

  • Delete from the Sheriff's interlocutor the words 'sustains the seventh plea in law for the pursuer' and insert 'finds the terms of the Minute of Agreement between the pursuer and defender relating to financial provision were not fair and reasonable at the time it was entered into'
  • Quoad ultra refuse the appeal and adhere to the Sheriff's interlocutor