Scottish Sheriff Court Decisions

ELSPETH ANN DIGBY GRANT or AMIN v. SAYED HASSAN AMIN [2000] ScotSC 19 (12th July, 2000)

M562/90

GLASGOW, 12 July 2000.

The Sheriff Principal having resumed consideration of the cause, refuses the appeal and adheres to the sheriff's interlocutor of 9 March 2000 complained of; finds the pursuer liable to the defender in the expenses occasioned by the appeal and remits the account thereof when lodged to the auditor of court to tax and to report thereon.

This is an appeal against an interlocutor dated 9 March 2000 dismissing as incompetent an application by the pursuer for an incidental order under Section 14 of the Family Law (Scotland) Act 1985 for the sale of heritable property owned by the defender at 10 Crown Road North, Glasgow.

The parties were divorced by interlocutor dated 7 October 1997. The defender was ordered to make payment to the pursuer of a capital sum of £70,300. Regrettably, he has not, as I understand it, paid anything. The pursuer did not in the original process make any application for sale of heritable property standing in name of the defender. The question which arises in the present appeal is whether she can do so now.

The present application was first made by way of motion which was argued before Sheriff Kearney on 3 June 1999. The motion was refused, the view being that the application should proceed by way of minute and answers. Questions of competency of the application were however reserved, and a challenge to the fundamental nature of the application was made at a hearing before Sheriff Henry on 3 September 1999. By interlocutor dated 9 March 2000 Sheriff Henry held the application to be incompetent. In his Note he concluded that the application could be not said to have been brought under the provisions of Rule 129 of the old Ordinary Cause Rules these being applicable to the present action. That, the learned sheriff considered, did not necessarily preclude the application provided it was otherwise clearly authorised by statute. He did not consider that the application was so authorised. He noted that Section 14(1) which authorises applications for "incidental orders" opens with the expression "...an incidental order "may be made under section 8(2) of this Act". Section 8 makes provision for the type of orders for financial provision which may be sought "in an action of divorce" and proceeds in sub-section (2) to provide that when such order is sought it shall be made if it is justified by certain principles and is reasonable having regard to the resources of the parties. The sheriff further observed the contrast which exists between Section 13 of the Act relating to orders for payment of a periodical allowance and Section 12 which provides for payment of a capital sum or transfer of property. He observed

Counsel for the pursuer contended that the sheriff had erred in his approach to this matter. He contended that the provisions of Sections 8 and 14 had to be viewed separately. The only qualification for making an application for an "incidental order" was that, in terms of the opening words of Section 8, it must be "in an action for divorce". Those words should not be construed in a narrow procedural sense and simply meant "in a divorce process". Section 14 was largely concerned with matters of procedure; the only restrictions which it contained were in relation to the orders mentioned in sub-sections 2(d) and (e) which could only be made on or after the granting of decree of divorce. Many of the provisions of Section 14 would be rendered nugatory if the procedures contemplated could only be invoked prior to or on the granting of decree of divorce.

I have to say that I usually find the terms of this statute to be labyrinthine and this occasion is no exception. There is obviously a certain practical attraction in the argument advanced by the appellant. There is an obvious distinction between orders for transfer of property which plainly cannot in terms of Section 12(1) be made in circumstances such as the present, and orders for the sale of property. On the face of it the latter can be made "before on or after the granting or refusal of decree of divorce" (Section 14(1)). I am nevertheless satisfied that the approach adopted by the learned sheriff is not to be disturbed. It is not without significance that the present application does not, as a matter of concession, proceed under any identifiable rule of court, which at least points to a view on the part of those responsible for drafting the rules at the material time that this was not a procedure which the statute contemplated. There is also some force in the point made on behalf of the respondent that one should not readily create by inference what in effect constitutes an extension to the law of diligence. The fundamental difficulty for the appellant however appears to me to arise, as the sheriff noted, because of the use of the words in Section 14(1) "an incidental order may be made under Section 8(2) of this Act". If it had been Section 8(1) which was referred to the appellant's argument would have had more force. Section 8(2) is the provision which requires the court when making an order for financial provision, to make such order as is justified by principles set out in Section 9 and is reasonable having regard to the resources of the parties. The principles of Section 9 in turn relate to objectives such as the equal division of matrimonial property. Reading the provisions as a whole, they appear to me to have a particular focus on the type of order which the court ought to make in settling the financial affairs of parties at the time of divorce. I agree with counsel for the appellant that the provisions of Section 14 have a procedural character, but in my view they are procedural in the sense of existing to facilitate the making of the main orders of capital payment, transfer of property, periodical allowance and pension sharing. For that reason the orders are described as "incidental". Questions of sale and valuation of property may properly fall to be dealt with in that context. There is a power to make orders before refusal which can only have content in a situation of regulation or re-organisation prior to an examination of the parties whole affairs by the court. Whilst there is power to make orders after the granting of decree, there is at least a hint from sub-section (3) that this exists to deal with a situation where one party continues to occupy the matrimonial home whilst it stands in name of the other. In short, I do not consider that the application made in the present situation can be regarded as seeking "an order under Section 8(2)" of the Act.

With a measure of regret, since it is in my view deplorable that the appellant should have been forced to make this application, I shall adhere to the sheriff's interlocutor and refuse the appeal. It was agreed that expenses would follow success.