Grant v Grant
| Jurisdiction | Scotland |
| Judge | Sheriff Principal CD Turnbull,Sheriff WH Holligan,Sheriff HK Small |
| Judgment Date | 15 February 2018 |
| Court | Sheriff Appeal Court |
| Date | 15 February 2018 |
| Docket Number | No 5 |
[2018] SAC (Civ) 4
Sheriff Principal CD Turnbull, Sheriff WH Holligan and Sheriff HK Small
Brand's Trs v Brand's Trs (1876) 3 R (HL) 16; (1876) 1 App Cas 762
Clive, EM, Law of Husband and Wife in Scotland (4th ed, W Green, Edinburgh, 1997), paras 24.025, 24.026
Reid, KGC, “Accession” in Stair Memorial Encyclopaedia: The Laws of Scotland (Butterworths/Law Society of Scotland, Edinburgh, Edinburgh, 1993), vol 18, Ch 12, para 574
Scottish Law Commission, Report on Matrimonial Property (Scot Law Com no 86, 1984) (Online: https://www.scotlawcom.gov.uk/files/7412/7989/7339/rep86.pdf (27 April 2108))
Husband and wife — Financial provision on divorce — Capital sum — Accession — Whether house built on husband's land had acceded to the land — Whether land and house on the land should be treated separately — Whether house and land were matrimonial property — Family Law (Scotland) Act 1985 (cap 37), sec 10
Gail Grant raised an action for divorce against her husband William Grant in the sheriffdom of Grampian, Highland and Islands at Aberdeen. The defender insisted on his first preliminary plea and the cause proceeded to a debate before a sheriff (WH Summers), on 16 May 2017. On 31 May 2017, the sheriff pronounced an interlocutor excluding from probation certain averments relating to the property. The defender appealed against that decision to the Sheriff Appeal Court and the pursuer cross-appealed.
Section 8 of the Family Law (Scotland) Act 1985 (cap 37) (‘the 1985 Act’) provides that either party to the marriage may apply to the court for an order for financial provision. Section 9(1)(a) provides that in deciding what order for financial provision, if any, to make the court is to apply the principle that the net value of the matrimonial property should be shared fairly between the parties. Section 10 provides, inter alia, “(1) In applying the principle set out in section 9(1)(a) of this Act, the net value of the matrimonial property … shall be taken to be shared fairly between persons when it is shared equally or in such proportions as are justified by special circumstances; (2) … the net value of the property shall be the value of the property at the relevant date after deduction of any debts incurred by one or both of the parties to the marriage … – (a) before the marriage so far as they relate to the matrimonial property …, and (b) during the marriage … which are outstanding at that date … (4) … in this section … ‘the matrimonial property’ means all of the property belonging to the parties or either of them at the relevant date which was acquired by them or him (otherwise than by way of gift or succession from a third party)– (a) before the marriage for use by them as a family home or as furniture or plenishings for such home; or (b) during the marriage but before the relevant date.”
The parties had been in a relationship since April 1994. Sometime before the relationship began, the man purchased a plot of land. From July 1996, the couple lived together in a mobile home placed on the land. The following year, the parties were granted planning permission to erect a kit home there. The build was completed in October 1997. They subsequently had two children and were married in 2003. They lived in the home until they separated in 2008. The wife thereafter raised an action for divorce and payment of a capital sum. The matter proceeded to a debate before a sheriff on the husband's preliminary plea. The husband argued that neither the house nor the land upon which it was built comprised part of the matrimonial property. The sheriff decided that the land on which the house had been built was not matrimonial property but that the house itself was. The husband appealed, and the wife cross-appealed. The husband submitted that the house was not matrimonial property on the basis that the land was not matrimonial property and that the house, which became part of the land when it acceded to it, could not therefore be matrimonial property. The wife submitted that both the land and the house were matrimonial property.
Held that: (1) the property comprised both the house and the land upon which it is erected, it was a single item of property which belonged to the husband at the relevant date (para 13); (2) the single item of property in issue can only have been acquired as and when the house was completed, while the law of accession regulates ownership of property it does not affect whether or not that property is matrimonial property for the purposes of the 1985 Act (para 14); (3) if the wife proved her averments, the property comprising the house and the land upon which it was erected were matrimonial property (para 16); and appeal refused and cross-appeal allowed.
The cause called before the Sheriff Appeal Court, comprising Sheriff Principal CD Turnbull, Sheriff WH Holligan and Sheriff HK Small, for a hearing on 29 November 2017.
At advising, on 15 February 2018, the opinion of the Court was delivered by Sheriff Principal CD Turnbull—
Opinion of the Court—
[1] The issue in this appeal is whether or not certain property, which comprises a plot of land and the house built thereon, located in Aberdeenshire, can form matrimonial property, having regard to the terms of the Family Law (Scotland) Act 1985 (cap 37) (‘the 1985 Act’).
[2] The respondent commenced proceedings against the appellant in Aberdeen Sheriff Court for divorce and payment of a capital sum. After sundry procedure, a debate proceeded before the sheriff. Having resumed consideration of the cause, the sheriff sustained the first plea in law for the appellant, to the extent of excluding from probation certain averments relative to the property, and allowed a proof before answer. The effect of the sheriff's interlocutor was to find that the land on which the house had been built was not matrimonial property, whereas, what the sheriff described as, ‘the building materials that came to represent the physical embodiment of the house’ were.
[3] The appellant appeals against that decision. There is also a cross-appeal at the...
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