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Gordon Murdoch v Lynn McCarroll or Murdoch – [2011] CSIH 002 Appeal to the Inner House

This is an Appeal to the Inner House in which Balfour+Manson LLP represented the pursuer / respondent.
The pursuer and defender married in 2003 and separated in 2004. The parties had a son born in 2003 who resided with the pursuer in the matrimonial home following upon separation. The pursuer raised an action of divorce against the defender at Hamilton Sheriff Court in 2005. The Sheriff, at first instance, ordered a transfer of the former matrimonial home to the pursuer with a balancing capital sum to be paid to the defender although he had not craved such a sum.
The defender appealed on the basis that he had not craved a capital sum and that accordingly the order was incompetent. He wished the court to leave the matrimonial home in his name and order a capital sum payment to the pursuer which should be suspended pending sale. The Sheriff Principal gave the defender/appellant an opportunity to amend his pleadings to include a crave for payment to him of a capital sum but he refused as he wished to retain his appeal point. The Sheriff Principal held that the order in relation to the capital sum should be recalled as it was incompetent but that the property transfer order should remain. This involved the pursuer/respondent retaining the vast majority of the matrimonial property but the Sheriff Principal took the view that this was justified on the basis that it was the defender’/appellant’s persistent procedural stance in refusing to crave a capital sum that had lead to the situation and this stance could fall into the category of “special circumstances” justifying a departure from equal sharing in terms of s.10 of the Family Law (Scotland) Act 1985.
The defender / appellant then appealed to the Inner House. During submissions, although Counsel for both parties took the view that it had been incompetent for the Sheriff to order payment of a capital sum to the defender in the absence of a crave, the Inner House made clear that they did not agree. They further indicated that, in their view, the broadly accepted position that a party can only seek an order against the other party was incorrect. They sought confirmation that it would still be possible for the capital sum originally ordered to be paid to the defender, the level of which was not appealed by the pursuer/respondent following the first Proof, and said confirmation was provided by the pursuer/respondent’s Counsel. She then tendered a late Minute of Amendment seeking a compensating payment to be made to the defender in exchange for the transfer of the matrimonial home, by way of an incidental order in terms of s14(2)(k) of the Family (Law) Scotland Act 1985. The court took the view that the plain objective of the 1985 Act was to effect a fair division of the matrimonial property and that, accordingly, construing its provisions in such a way as to place procedural barriers in the way of achieving that aim, would be contrary to its whole ethos and would allow parties to prevent the court from properly applying the principles of the Act. Accordingly they allowed the Appeal in part by recalling the Sheriff Principal’s interlocutor and re-instating the decision of the Sheriff. As they did so on the basis of the additional crave in the pursuer/respondent’s late Minute of Amendment they were not required to decide if such an order were competent in the absence of a crave. They stated, however, that they were inclined to take the view that such an order would be competent.
For further information on Family Law related issues, please contact Shona Smith

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