McColl v McColl [1993] ScotCS CSIH_1 (05 February 1993)

McColl v McColl [1993] ScotCS CSIH_1 (05 February 1993)

The court held that while the sheriff had statutory power to backdate awards of aliment under the 1985 Act, this did not affect or reduce the liability under interim aliment awards unless those awards were expressly varied or recalled. There is no statutory power to retrospectively vary or recall interim aliment, and the absence of such power means the court cannot rewrite the sheriff's interlocutor to achieve the intended reduction in liability.

Citation
[1993] ScotCS CSIH_1
Parties
Pursuer: Sharon Ann McColl; Child: Stuart Iain McColl; Defender: Defender (McColl)
Jurisdiction
Scotland
Judgment Date
05 February 1993
Procedural Posture
Appeal / Final Judgment
Outcome
appeal refused
Legal Topics
Separation, Aliment, Interim Aliment, Backdating Orders, Statutory Interpretation
Family Law Separation Aliment Interim Aliment Backdating Orders Statutory Interpretation

Case Brief

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Parties

Sharon Ann McColl

Pursuer

Stuart Iain McColl

Child

Defender (McColl)

Defender

Procedural Posture

Appeal / Final Judgment

Legal Issues

  1. 1 Whether the sheriff had power to backdate awards of aliment under the Family Law (Scotland) Act 1985 in an action raised before the Act's commencement
  2. 2 Effect of backdating aliment on interim aliment awards
  3. 3 Competency of retrospective variation or recall of interim aliment

Ratio Decidendi

The court held that while the sheriff had statutory power to backdate awards of aliment under the 1985 Act, this did not affect or reduce the liability under interim aliment awards unless those awards were expressly varied or recalled. There is no statutory power to retrospectively vary or recall interim aliment, and the absence of such power means the court cannot rewrite the sheriff's interlocutor to achieve the intended reduction in liability.

Court Disposition

appeal refused

Orders

  • Sheriff principal's interlocutor affirmed
  • Order for backdating deleted from sheriff's interlocutor