Dow v. Sweeney [2005] ScotCS CSIH_65 (24 August 2005)

Dow v. Sweeney [2005] ScotCS CSIH_65 (24 August 2005)

The court held that, although a disparity in the nature of assets allocated could constitute special circumstances, in this case it did not justify departure from equal sharing. The husband's resources, including the ability to redeem director's loans to his business, were sufficient to meet the wife's claim over time without requiring asset realisation that would prejudice the business. The court reduced the capital sum slightly to allow the husband to retain some liquid assets and ordered payment by instalments, with interest only from the due dates of each instalment.

Citation
[2005] ScotCS CSIH_65
Parties
Pursuer and Reclaimer: Susan Dow or Sweeney; Defender and Respondent: Patrick Cornelius Sweeney
Jurisdiction
Scotland
Judgment Date
24 August 2005
Procedural Posture
Reclaiming Motion (appeal) in Divorce Proceedings / Appeal Judgment (inner House, Court of Session)
Outcome
Appeal allowed in part; capital sum award varied.
Legal Topics
Financial Provision on Divorce, Division of Matrimonial Property, Capital Sum Awards, Special Circumstances for Unequal Division, Resources of Parties, Interest on Capital Sums
Family Law Financial Provision on Divorce Division of Matrimonial Property Capital Sum Awards Special Circumstances for Unequal Division Resources of Parties Interest on Capital Sums

Case Brief

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Parties

Susan Dow or Sweeney

Pursuer and Reclaimer

Patrick Cornelius Sweeney

Defender and Respondent

Procedural Posture

Reclaiming Motion (appeal) in Divorce Proceedings / Appeal Judgment (inner House, Court of Session)

Legal Issues

  1. 1 Whether special circumstances justified unequal sharing of matrimonial property
  2. 2 Whether the capital sum awarded was reasonable having regard to the resources of the parties
  3. 3 Whether interest should be awarded on capital sums

Ratio Decidendi

The court held that, although a disparity in the nature of assets allocated could constitute special circumstances, in this case it did not justify departure from equal sharing. The husband's resources, including the ability to redeem director's loans to his business, were sufficient to meet the wife's claim over time without requiring asset realisation that would prejudice the business. The court reduced the capital sum slightly to allow the husband to retain some liquid assets and ordered payment by instalments, with interest only from the due dates of each instalment.

Court Disposition

Appeal allowed in part; capital sum award varied.

Orders

  • Husband to pay wife a total capital sum of £950,000 (less £350,000 already paid), with the outstanding £600,000 payable in five instalments: £100,000 within three months, £100,000 by 31 March 2006, £100,000 by 31 March 2007, £150,000 by 31 March 2008, and £150,000 by 31 March 2009.
  • Interest at the judicial rate to run on each instalment from its due date until payment.