Lindsay v. Rattray [2007] ScotSC 3 (17 January 2007)

Lindsay v. Rattray [2007] ScotSC 3 (17 January 2007)

The Sheriff Principal held that the Sheriff Court has inherent jurisdiction to extend the statutory period for making a capital sum order under section 12(1)(b) of the Family Law (Scotland) Act 1985 where necessary to do justice. The Sheriff Principal found that the Sheriff was bound by the earlier extension and should have granted decree for a capital sum. The capital sum should be calculated by giving the appellant credit for her liability for half of the partnership debts, resulting in a capital sum of £19,930.63, payable in two instalments, and this sum was reasonable having regard to the respondent's resources.

Citation
[2007] ScotSC 3
Parties
Pursuer and Respondent: William Lindsay; Defender and Appellant: Nicola Romaine Rattray or Lindsay
Jurisdiction
Scotland
Judgment Date
17 January 2007
Procedural Posture
Divorce/family Law Financial Provision / Appeal From Sheriff to Sheriff Principal
Outcome
Appeal upheld. Sheriff's interlocutors recalled except as to decree in terms of defender's third crave. Decree granted for payment of capital sum to defender and appellant.
Legal Topics
Financial Provision on Divorce, Extension of Statutory Time Limits, Inherent Jurisdiction of the Court, Calculation of Matrimonial Property, Division of Matrimonial Assets
Family Law Financial Provision on Divorce Extension of Statutory Time Limits Inherent Jurisdiction of the Court Calculation of Matrimonial Property Division of Matrimonial Assets

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Parties

William Lindsay

Pursuer and Respondent

Nicola Romaine Rattray or Lindsay

Defender and Appellant

Procedural Posture

Divorce/family Law Financial Provision / Appeal From Sheriff to Sheriff Principal

Legal Issues

  1. 1 Whether the Sheriff Court has inherent jurisdiction to extend the statutory period for making a capital sum order under section 12(1)(b) of the Family Law (Scotland) Act 1985
  2. 2 Whether the Sheriff erred in refusing to grant a capital sum due to expiry of the statutory period
  3. 3 Proper calculation of the capital sum payable to the appellant, including treatment of partnership debts and resources

Ratio Decidendi

The Sheriff Principal held that the Sheriff Court has inherent jurisdiction to extend the statutory period for making a capital sum order under section 12(1)(b) of the Family Law (Scotland) Act 1985 where necessary to do justice. The Sheriff Principal found that the Sheriff was bound by the earlier extension and should have granted decree for a capital sum. The capital sum should be calculated by giving the appellant credit for her liability for half of the partnership debts, resulting in a capital sum of £19,930.63, payable in two instalments, and this sum was reasonable having regard to the respondent's resources.

Court Disposition

Appeal upheld. Sheriff's interlocutors recalled except as to decree in terms of defender's third crave. Decree granted for payment of capital sum to defender and appellant.

Orders

  • Decree against pursuer and respondent for payment to defender and appellant of a capital sum of £19,930.63, of which £10,036.53 is payable immediately and £7,894.10 is payable on 17 January 2009.
  • No expenses due to or by either party for the period 12 February 2004 to 30 November 2005 except as specified for amendment procedure and first appeal.