GARY JOHN HARPER AGAINST SALLY ANN CAMERON OR HARPER [2014] ScotSC 32 (02 June 2014)

GARY JOHN HARPER AGAINST SALLY ANN CAMERON OR HARPER [2014] ScotSC 32 (02 June 2014)

The court held that it was functus officio in relation to the orders sought, as the decree of divorce and financial provision (including incidental orders for sale of property) had already been granted and the current dispute related to the interpretation and enforcement of a private contract (Minute of Agreement), not to any matter incidental to the court's orders. Therefore, the pursuer's Minute was incompetent and fell to be dismissed.

Citation
[2014] ScotSC 32
Parties
Pursuer: Gary John Harper; Defender: Sally Ann Cameron or Harper
Jurisdiction
Scotland
Judgment Date
02 June 2014
Procedural Posture
Divorce/family Law Ancillary Order Application / Post Decree, Hearing on Pursuer's Minute for Further Incidental Order
Outcome
Pursuer's Minute refused as incompetent; defender's preliminary plea sustained.
Legal Topics
Divorce, Financial Provision, Incidental Orders, Res Judicata, Functus Officio, Enforcement of Decrees
Family Law Contract Law Divorce Financial Provision Incidental Orders Res Judicata Functus Officio Enforcement of Decrees

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Parties

Gary John Harper

Pursuer

Sally Ann Cameron or Harper

Defender

Procedural Posture

Divorce/family Law Ancillary Order Application / Post Decree, Hearing on Pursuer's Minute for Further Incidental Order

Legal Issues

  1. 1 Whether the court is functus officio and/or res judicata prevents granting a further incidental order under s.14 of the Family Law (Scotland) Act 1985 after decree of divorce and financial provision has been granted;
  2. 2 Whether the dispute over the sale of property is incidental to the court's orders or a matter of contract between the parties.

Ratio Decidendi

The court held that it was functus officio in relation to the orders sought, as the decree of divorce and financial provision (including incidental orders for sale of property) had already been granted and the current dispute related to the interpretation and enforcement of a private contract (Minute of Agreement), not to any matter incidental to the court's orders. Therefore, the pursuer's Minute was incompetent and fell to be dismissed.

Court Disposition

Pursuer's Minute refused as incompetent; defender's preliminary plea sustained.

Orders

  • Minute refused;
  • Minute and Answers procedure certified suitable for junior counsel;