Scottish Court of Session Decisions

The reclaimer in this reclaiming motion was originally divorced from the respondent. The divorce proceedings included a crave for divorce, for capital payment and for expenses. During the course of the proceedings the reclaimer was ordained to provide certain information about his assets. He failed to do so, and after sundry procedure the Sheriff ordered that the case should proceed as undefended. This interlocutor was appealed to the Sheriff Principal who refused the appeal. Thereafter a decree was granted which is in the following terms:

The time for reclaiming expired and the decree was extracted and indeed the respondent moved towards a petition for sequestration. At that stage the reclaimer presented a petition to this court for suspension and interdict. A plea to the competency of that petition was taken by the respondent and that plea was argued before the Lord Ordinary. The basis of the plea was that under Rule 49.30 it is incompetent to suspend a decree of divorce. The question that appears to have been argued before the Lord Ordinary was whether or not that Rule applies to divorce decrees pronounced in the Sheriff Court as well as those pronounced in the Court of Session. The Lord Ordinary found that the Rule does apply to Sheriff Court decrees and, accordingly, sustained the plea to the competency. Whatever merit that point may have, what appears to have been lost sight of is a rather more fundamental point which is that this petition is not seeking to suspend the divorce decree. It is apparent from the prayer of the petition that what is sought is to suspend the decree in favour of the petitioner dated 3 and extracted 18 January 1996 to the extent of (2) and (3) thereof, in other words the matters relating to capital sum and expenses. That being so, the application of Rule 49.30 in our view disappears. This is not a petition to suspend a decree of divorce. It is a petition to suspend the decree in so far as it relates to capital payment and expenses only.

Mrs. Davie, on behalf of the respondent, accepted that if the decree could be divided into its constituent parts, the Lord Ordinary's decision could not stand because she accepted that this was not an attempt to suspend the decree of divorce. In our view there is no doubt that the decree can be split into its constituent parts and in our view, therefore, the action based on suspension of the decree for a capital sum is one which is competent in this court. We make no observations whatever as to the relevancy of this action, which may be a matter which will have to be dealt with at a later stage. The only point which is before us today is whether the action should be dismissed, as the Lord Ordinary did, on the basis that it is incompetent because it is an attempt to suspend a decree of divorce. As we are satisfied that that decision was erroneous we shall allow the reclaiming motion and repel the respondent's first plea-in-law, which is a plea to the competency, and remit the matter back to the Lord Ordinary to proceed as accords.