DM (AP) v JM [2011] ScotCS CSOH_33 (15 February 2011)

DM (AP) v JM [2011] ScotCS CSOH_33 (15 February 2011)

The court found that the relevant date for valuation of matrimonial property was 5 December 2008. The pursuer was entitled to financial provision, including a capital sum, pension sharing order, and periodical allowance, based on the fair sharing of matrimonial property and her economic disadvantage. The court determined that the transfers to the second defenders (trust) were not proven to have the effect of defeating the pursuer's claim and declined to set them aside under section 18. The award was made having regard to the resources of the parties and the needs of the pursuer, who suffered from severe health issues and had no earning capacity.

Citation
[2011] ScotCS CSOH_33
Parties
Pursuer: D M (AP); First Defender: J M (AP); Second Defenders: The W Trustees Limited; Third Defender: K B (AP) as legal representative of R M, S M and J M
Jurisdiction
Scotland
Judgment Date
15 February 2011
Procedural Posture
Divorce and Financial Provision / Post Proof, Final Judgment
Outcome
Financial provision awarded to the pursuer; trust transactions not set aside.
Legal Topics
Financial Provision on Divorce, Matrimonial Property, Trust Transactions, Pension Sharing, Periodical Allowance
Family Law Trusts and Estates Financial Provision on Divorce Matrimonial Property Trust Transactions Pension Sharing Periodical Allowance

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Parties

D M (AP)

Pursuer

J M (AP)

First Defender

The W Trustees Limited

Second Defenders

K B (AP) as legal representative of R M, S M and J M

Third Defender

Procedural Posture

Divorce and Financial Provision / Post Proof, Final Judgment

Legal Issues

  1. 1 What is the net value of the matrimonial property at the relevant date?
  2. 2 Is the pursuer entitled to a capital sum, pension sharing order, and periodical allowance?
  3. 3 Should transactions transferring assets to the second defenders (trust) be set aside under section 18 of the Family Law (Scotland) Act 1985?

Ratio Decidendi

The court found that the relevant date for valuation of matrimonial property was 5 December 2008. The pursuer was entitled to financial provision, including a capital sum, pension sharing order, and periodical allowance, based on the fair sharing of matrimonial property and her economic disadvantage. The court determined that the transfers to the second defenders (trust) were not proven to have the effect of defeating the pursuer's claim and declined to set them aside under section 18. The award was made having regard to the resources of the parties and the needs of the pursuer, who suffered from severe health issues and had no earning capacity.

Court Disposition

Financial provision awarded to the pursuer; trust transactions not set aside.

Orders

  • Award of capital sum to the pursuer (amount to be determined based on valuations and resources).
  • Pension sharing order in respect of the first defender's Cable and Wireless pension.