SARAH LOUISE GUNN OR FOSTER AGAINST ROSS STEWART FOSTER [2023] ScotCS CSIH_35 (29 September 2023)

SARAH LOUISE GUNN OR FOSTER AGAINST ROSS STEWART FOSTER [2023] ScotCS CSIH_35 (29 September 2023)

The Lord Ordinary erred by failing to consider payment of a capital sum by instalments as a means of effecting fair division of matrimonial property, particularly given the evidence that such a scheme was practicable and the need for a clean break. The court has power under the 1985 Act to order transfer of shares in exchange for a capital sum payable by instalments, and the evidence supported that Mr Foster's resources, including future profits, were sufficient to justify such an order. The need for finality, especially in light of the domestic abuse conviction, further supported this outcome.

Citation
[2023] ScotCS CSIH_35
Parties
Pursuer and Reclaimer: Sarah Louise Gunn or Foster; Defender and Respondent: Ross Stewart Foster
Jurisdiction
Scotland
Judgment Date
29 September 2023
Procedural Posture
Divorce and Financial Provision Appeal / Appeal (reclaiming Motion) From Lord Ordinary's Decision
Outcome
Appeal allowed. Lord Ordinary's interlocutors recalled. New orders made for divorce, transfer of property, and financial provision including capital sum and share transfer.
Legal Topics
Financial Provision on Divorce, Matrimonial Property, Share Transfer, Capital Sum, Clean Break, Resources Assessment, Installment Payments, Domestic Abuse Relevance
Family Law Company Law Financial Provision on Divorce Matrimonial Property Share Transfer Capital Sum Clean Break Resources Assessment +2 more

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Parties

Sarah Louise Gunn or Foster

Pursuer and Reclaimer

Ross Stewart Foster

Defender and Respondent

Procedural Posture

Divorce and Financial Provision Appeal / Appeal (reclaiming Motion) From Lord Ordinary's Decision

Legal Issues

  1. 1 Whether the court can order transfer of shares in a private company between divorcing spouses in exchange for a capital sum payable by instalments under the Family Law (Scotland) Act 1985
  2. 2 Whether the Lord Ordinary erred in failing to consider payment by instalments as a means of effecting fair division of matrimonial property
  3. 3 Whether the respondent's resources were sufficient to justify such an order

Ratio Decidendi

The Lord Ordinary erred by failing to consider payment of a capital sum by instalments as a means of effecting fair division of matrimonial property, particularly given the evidence that such a scheme was practicable and the need for a clean break. The court has power under the 1985 Act to order transfer of shares in exchange for a capital sum payable by instalments, and the evidence supported that Mr Foster's resources, including future profits, were sufficient to justify such an order. The need for finality, especially in light of the domestic abuse conviction, further supported this outcome.

Court Disposition

Appeal allowed. Lord Ordinary's interlocutors recalled. New orders made for divorce, transfer of property, and financial provision including capital sum and share transfer.

Orders

  • Decree of divorce granted.
  • Mrs Foster to transfer her 30% shareholding in RRR Holdings Limited to Mr Foster within 28 days of decree.