James Gregor Robertson V. Mary Elizabeth Baird Or Robertson
| Jurisdiction | Scotland |
| Judge | T.G. Coutts, Q.C. |
| Date | 21 November 2002 |
| Docket Number | F44/00 |
| Court | Court of Session |
| Published date | 29 November 2002 |
| OUTER HOUSE, COURT OF SESSION | |
| F44/00
| OPINION OF T. G. COUTTS, Q.C. (Sitting as a Temporary Judge) in the cause JAMES GREGOR ROBERTSON Pursuer; against MARY ELIZABETH BAIRD or ROBERTSON Defender: ________________ |
Pursuer: MacNair, Q.C; Brodies, W.S.
Defender: Wise.; Balfour & Manson
21 November 2002
[1]This action for divorce and financial provisions arising therefrom was debated at procedure roll. It was contended that the pursuer's third conclusion was incompetent and irrelevant. That conclusion reads:
"For an incidental order varying clause TENTH of the contract of co-partnery entered into between the parties dated 18th May 1983 by deleting 'It is especially declared and agreed that no revaluation of assets shall be carried out, and such sums, computed as aforesaid, shall be held to be the full value of the share of the said deceased or retiring partner' and by substituting therefor the following: 'In preparing the balance sheet as at the date of death or retiral all assets of the partnership shall be revalued as at the date of death or retiral'".
[2]The pursuer's contention was that this was an incidental order he could seek under Section 14(2)(h) of the Family Law (Scotland) Act 1985 i.e. an order setting aside or varying any term of an ante-nuptial or post-nuptial marriage settlement.
[3]The defender's contention was, simply, that the contract of co-partnery was not a "marriage settlement".
[4]The contract of co-partnery which was entered into between the parties was dated 18 May 1983; it narrates that the first party i.e. the pursuer, agreed with effect from 29 November 1982 to assume into partnership with him the second party (the defender) who had agreed to be so assumed. They resolved to enter into the deed in order to set out the terms and conditions of their partnership. That was a partnership carrying on and continuing the business of farmers under the firm name of G & J Robertson. Provisions were made for either party to retire on the anniversary, 28 November, in any year, by giving three months previous written notice. The capital of the business was contributed to the extent of £11,000 by the defender and the "whole balance" by the pursuer. It was provided that neither party should be entitled to interest on capital and that the profits of the firm be shared equally. Each party was to devote full time and attention to the business except that it was agreed that the pursuer was entitled to continue to operate a business known as J Robertson (Trailers). The provision (tenth) which came into operation on the death or notice of retiral of either party provided that:
"The continuing party may, within three months from such death, or receipt of such notice, give written notice to the representatives of such deceased party, or the retiring party, of his or her intention to purchase his or her interest in the partnership business. Such continuing party shall be entitled to acquire such interest at the sum which shall be found to stand at the credit of the said deceased or retiring party (1) if the date of death or retiral shall be the twenty eighth day of November in any year, then in the Balance Sheet of the firm as at such date, such Balance Sheet being prepared on the same basis as in the preceding Balance Sheets of the firm, or (2) if the date be a date other than the twenty eighth day of November in any year, then in the Balance Sheet prepared or to be prepared, at the twenty eighth day of November immediately preceding such date, such Balance Sheet also being prepared on the same basis as in preceding Balance Sheets of the firm, plus, as applicable, (a) a share of profits for...
To continue reading
Request your trial