SUSAN CAMPBELL or WILSON v. JOHN WILSON [2000] ScotSC 34 (21st December, 2000)

SUSAN CAMPBELL or WILSON v. JOHN WILSON [2000] ScotSC 34 (21st December, 2000)

An order under section 2(4)(b) of the Matrimonial Homes (Family Protection) (Scotland) Act 1981, in the context of a divorce action, is an interim provision of an alimentary nature and is not appealable to the sheriff principal without leave of the sheriff; as leave was neither sought nor granted, the appeal is incompetent and must be dismissed.

Citation
[2000] ScotSC 34
Parties
Pursuer and Respondent: Susan Campbell or Wilson; Defender and Appellant: John Wilson
Jurisdiction
Scotland
Procedural Posture
Divorce Action (consistorial) / Appeal on Competency of Interlocutor Orders
Outcome
Appeal dismissed as incompetent.
Legal Topics
Interim Aliment, Appeal Competency, Matrimonial Homes (family Protection) (scotland) Act 1981, Sheriff Courts (scotland) Act 1907
Family Law Civil Procedure Interim Aliment Appeal Competency Matrimonial Homes (family Protection) (scotland) Act 1981 Sheriff Courts (scotland) Act 1907

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Parties

Susan Campbell or Wilson

Pursuer and Respondent

John Wilson

Defender and Appellant

Procedural Posture

Divorce Action (consistorial) / Appeal on Competency of Interlocutor Orders

Legal Issues

  1. 1 Whether an appeal against an interim order under section 2(4)(b) of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 can be taken without leave of the sheriff
  2. 2 Whether such an order is of an alimentary nature and thus subject to the same appeal restrictions as interim aliment

Ratio Decidendi

An order under section 2(4)(b) of the Matrimonial Homes (Family Protection) (Scotland) Act 1981, in the context of a divorce action, is an interim provision of an alimentary nature and is not appealable to the sheriff principal without leave of the sheriff; as leave was neither sought nor granted, the appeal is incompetent and must be dismissed.

Court Disposition

Appeal dismissed as incompetent.

Orders

  • Dismisses the appeal as being incompetent.
  • Reserves the question of expenses meantime.