Jacqueline Elizabeth Nolan Or Macdonald V. William James Macdonald
| Jurisdiction | Scotland |
| Judge | Sheriff Principal Brian A Lockhart |
| Court | Sheriff Court |
| Date | 30 March 2009 |
| Docket Number | F127/04 |
| Published date | 16 April 2009 |
F127/04
| JUDGMENT OF SHERIFF PRINCIPAL B A LOCKHART | |
| in the cause | |
| JACQUELINE ELIZABETH NOLAN or MacDONALD | |
| Pursuer and Respondent | |
| against | |
| WILLIAM JAMES MacDONALD | |
| Defender and Appellant |
Act: Mrs Carey, of Messrs John, Jackson & Dick
Alt: Ms Chalmers, of Messrs Leonards
HAMILTON: 30 March 2009
The Sheriff Principal, having resumed consideration of the cause upholds the appeal to the extent of deleting from the Sheriff's interlocutor of 13 October 2008 the words "sustains the seventh plea in law for the pursuer" and inserts "finds the terms of the Minute of Agreement between the pursuer and defender relating to financial provision were not fair and reasonable at the time it was entered into"; quoad ultra refuses the appeal and adheres to the Sheriff's said interlocutor; remits the cause to a procedural hearing before the Sheriff to determine further procedure; finds the defender and appellant liable to the pursuer and respondent in the expenses of the preliminary proof and the appeal; allows an account thereof to be given in and remits same when lodged to the Auditor of Court to tax and to report.
NOTE:
Background to the appeal
1. This is an action of divorce at the instance of the pursuer and respondent (hereinafter referred to as "the pursuer"). It is opposed by the defender and appellant (hereinafter referred to as "the defender". The action relates to divorce, residence, interdict, interim aliment and capital sum. There is no crave for periodical allowance. There have been various Child Welfare Hearings.
2. A Minute of Agreement (5/9 of process) was entered into between the parties as to financial provision. It was signed on 25 February 2005 by the pursuer and by 1 March 2005 by the defender. It was registered in the Books of Council and Session on 14 March 2005. In particular, the Minute of Agreement recorded that there would be no payment of aliment, no financial support after the divorce, no capital sum to the pursuer, the transfer of the matrimonial home to the defender and a discharge of any pension claims.. There was a discharge of further claims, and an agreement that the terms of the Agreement would remain in force notwithstanding the divorce. In clause 16 parties warranted there had been full disclosure.
3. The Family Law (Scotland) Act 1985 section 16 provides:
"(1) Where the parties to a marriage have entered into an agreement as to financial provision to be made on divorce, the court may make an order setting aside or varying-
(a) any term of the agreement relating to a periodical allowance where the agreement expressly provides for the subsequently setting aside or variation by the court of that term or
(b) the agreement or any term of it where the agreement was not fair and reasonable at the time it was entered into."
(2) The court may make an order- ...
(b) under subsection (1)(b) above, if the agreement does not contain a term relating to pension sharing, on granting decree of divorce or within such time as the court may specify on granting decree of divorce ..."
Accordingly a court cannot make an order setting aside an agreement as to financial provision on the grounds that it was not fair and reasonable at the time it was entered into until divorce has been granted or within such time as the court may specify thereafter.
4. The pursuer introduced an amendment to the proceedings in late 2005 to the effect that the Minute of Agreement as to financial provisions should be set aside on the grounds that it was not fair and reasonable at the time it was entered into. The pursuer introduced a plea in law 7 as follows:
"The Minute of Agreement entered into between the parties on 1 March 2005 and registered in the Books of Council and Session on 14 March 2005 being not fair and reasonable at the time said Minute was entered into, ought to be set aside in terms of section 16(1)(b) of the Family Law (Scotland) Act 1985."
The defender replied by introducing plea in law 10 which is in the following terms:
"The Minute of Agreement entered into between the parties on 1 March 2005 and registered in the Books of Council and Session on 14 March 2005 being fair and reasonable at the time the said Minute of Agreement was entered into, ought not to be set aside in terms of section 16(1)(b) of the Family Law (Scotland) Act 1985 as craved."
5. A preliminary proof was held on the question whether the Minute of Agreement was fair and reasonable at the time it was entered into. The Sheriff heard six days of evidence between 28 August 2007 and 17 March 2008. On 13 October 2008 she issued an interlocutor wherein she found in fact and law:
"(1) That the terms of the Minute of Agreement between the parties as to financial provision were not fair and reasonable at the time it was entered into by reason of the defender coercing the pursuer into signing the Minute of Agreement and by his failure to disclose the assets, liabilities and account for Billy's Taxis Lesmahagow Limited and the mortgage loan and outstanding debts in relation to the matrimonial home.
(2) The pursuer is entitled to an order in terms of section 16(1)(b) of the Family law (Scotland) Act 1985 setting aside all terms of the Minute of Agreement as to financial provision."
The Sheriff sustained the seventh plea in law for the pursuer and repelled the tenth plea in law for the defender which I have set out in para 4 hereof.
6. In the case of Gillon v Gillon (No 2) SLT 954 Lord Hope, giving the opinion of the court at 987J said:
"If, however, he is in the pursuer's favour he can deal with the matter by repelling the defender's second plea in law and leaving the pursuer's second plea in law standing, reserving the whole matter as to whether an order should be made setting aside or varying the Minute of Agreement or any term of it until after proof on the merits has been heard. ..., there is nothing in s16.2(b) to prevent the court declaring that the Agreement or a term of it was not fair and reasonable at the time it was entered into, so long as it does not take the additional step of pronouncing an order setting aside or varying the Agreement or any term of it at the preliminary stage."
Accordingly the Sheriff should not have set aside the Minute of Agreement in her interlocutor of 13 October 2008. This was a preliminary proof. She could only make an order setting aside the Minute of Agreement on granting divorce. That issue had not yet been decided. Following the decision in Gillon v Gillon (No 2), the Sheriff was entitled to declare that the Minute of Agreement was not fair and reasonable at the time it was entered into but she could not, in view of the terms of section 16(1) and (2) of the 1985 Act, proceed to set aside the Minute of Agreement until decree of divorce had been granted.
7. Parties were agreed on this procedural point. For that reason I have deleted that part of the Sheriff's interlocutor wherein she has sustained the seventh plea in law for the pursuer and the words "orders that all terms of the Minute of Agreement between the pursuer and defender relating to financial provision are set aside". In light of the terms of the Sheriff's decision, I have inserted in her interlocutor the words "finds that the terms of the Minute of Agreement between the pursuer and defender relating to financial provision were not fair and reasonable at the time it was entered into". I have adhered to her decision to repel the defender's tenth plea in law. This matter was not, as I say, the subject of argument at the appeal, which proceeded on other grounds.
8. The Sheriff, after the preliminary proof, held that the terms of the Minute of Agreement between the parties as to financial provision were not fair and reasonable at the time it was entered into by reason of the defender coercing the pursuer into signing the Minute of Agreement and by his failure to disclose assets, liabilities and accounts for Billy's Taxis Lesmahagow Limited and the mortgage loan and outstanding debts in relation to the mortgage home.
9. As far as the question of coercing the pursuer into signing the Minute of Agreement is concerned the Sheriff found in fact:
"(17) The pursuer was advised by her solicitor, Mrs Linda George, not to enter into the Minute of Agreement. On 4 February 2005 the pursuer attended at Mrs George office with her mother, at the request of Mrs George. Mrs George again advised the pursuer against entering into the Minute of Agreement. The pursuer's mother advised her not to enter into the Minute of Agreement.
(18) In January and February 2005 the defender repeatedly telephoned and visited the pursuer, shouted and swore at her and subjected her to verbal abuse in order to coerce her into entering into the Minute of Agreement. The pursuer was frightened of the defender.
(19) During the week prior to 25 February 2005 the defender visited the pursuer's home uninvited and in the presence of the pursuer's sister, Miss Kerry Nolan and the parties' children, shouted and swore at the pursuer, demanding that she sign the Minute of Agreement.
(20) On 24 February 2005 the defender visited the pursuer's home uninvited and in the presence of the pursuer's friend, Miss Lisa Kane, shouted at the pursuer to sign the Minute of Agreement. The pursuer was frightened of the defender. The same day she telephoned her solicitor and made arrangements to sign the Minute of Agreement at her solicitor's office the following day.
(25) The pursuer has a long standing medical history of anxiety and stress which subsisted during her marriage to the defender and at the time the Minute of Agreement was entered into.
(26) On 23 February 2004, in the present action, interim interdict was granted against the defender ad interim preventing him from personally molesting the pursuer; this interim interdict was continued on 18 March 2004 until further orders of court.
(27) The defender was...
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