Hillis Or Cunniff v Cunniff [1999] ScotCS 75 (12 March 1999)

Hillis Or Cunniff v Cunniff [1999] ScotCS 75 (12 March 1999)

The Lord Ordinary did not err in law or in the exercise of discretion in ordering the transfer of the matrimonial home to the pursuer. The order was justified by the statutory principles, was reasonable having regard to the resources of the parties, and was within the options presented by the parties themselves. The division, though resulting in the defender's insolvency, was not unreasonable in the circumstances, especially given the defender's own conduct and submissions.

Citation
[1999] ScotCS 75
Parties
Pursuer and Reclaimer / Respondent: Mrs. Dorothy Louisa Hillis or Cunniff; Defender and Appellant / Reclaimer: Kevin George Cunniff
Jurisdiction
Scotland
Judgment Date
12 March 1999
Procedural Posture
Reclaiming Motion (appeal) in Divorce and Financial Provision Proceedings / Decision on Reclaiming Motion (appeal) From Lord Ordinary's Order)
Outcome
reclaiming motion refused; Lord Ordinary's order affirmed
Legal Topics
Financial Provision on Divorce, Division of Matrimonial Property, Matrimonial Home, Discretion of Court, Special Circumstances, Resources of Parties
Family Law Property Law Financial Provision on Divorce Division of Matrimonial Property Matrimonial Home Discretion of Court Special Circumstances Resources of Parties

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Parties

Mrs. Dorothy Louisa Hillis or Cunniff

Pursuer and Reclaimer / Respondent

Kevin George Cunniff

Defender and Appellant / Reclaimer

Procedural Posture

Reclaiming Motion (appeal) in Divorce and Financial Provision Proceedings / Decision on Reclaiming Motion (appeal) From Lord Ordinary's Order)

Legal Issues

  1. 1 Whether the Lord Ordinary erred in ordering transfer of the matrimonial home to the pursuer under section 8(1) of the Family Law (Scotland) Act 1985
  2. 2 Whether the division of matrimonial property was justified by statutory principles and reasonable having regard to the resources of the parties
  3. 3 Whether the Lord Ordinary erred in his assessment of the parties' resources, debts, and economic disadvantage

Ratio Decidendi

The Lord Ordinary did not err in law or in the exercise of discretion in ordering the transfer of the matrimonial home to the pursuer. The order was justified by the statutory principles, was reasonable having regard to the resources of the parties, and was within the options presented by the parties themselves. The division, though resulting in the defender's insolvency, was not unreasonable in the circumstances, especially given the defender's own conduct and submissions.

Court Disposition

reclaiming motion refused; Lord Ordinary's order affirmed

Orders

  • Transfer of defender's whole right, title and interest in the matrimonial home at 9 Mayville Park, Dunbar to the pursuer
  • No order for periodical allowance or aliment