Case Reference Number:

A841/08

 

SHERIFFDOM OF TAYSIDE, CENTRAL AND FIFE AT KIRKCALDY

 

JUDGMENT OF SHERIFF G A WAY

 

in causa

 

 

PURSUER JEAN FLEMING or McWHIRTER, residing at 209 Kintore Park, Glenrothes, Fife

 

against

 

DEFENDER JAMES McWHIRTER, residing at 159 Tummel Road, Glenrothes, Fife

 

 

 

Act: Gleeson; Alt: McKenna.

 

Kirkcaldy 14 July 2009. The Sheriff, having resumed consideration of the cause: excludes the defender's averments anent a remedy at common law from probation and repels the defender's Pleas in Law 1, 2 and 3; quoad ultra repels the pursuer's Plea in Law 1 and appoints the parties to be heard on the question of expenses and further procedure on Wednesday, 29 July 2009 at 2.00 pm within the Sheriff Court House, Whytescauseway, Kirkcaldy.

 

 

 

 

NOTE

 

Statutes referred to: Matrimonial Homes (Family Protection) (Scotland) Act 1981

 

Section 19: Rights of occupancy in relation to division and sale

 

Where a spouse brings an action for the division and sale of a matrimonial home which the spouses own in common, the court, after having regard to all the circumstances of the case including-

(a) the matters specified in paragraphs (a) to (d) of section 3(3) of this Act; and

(b) whether the spouse bringing the action offers or has offered to make available to the other spouse any suitable alternative accommodation,

may refuse to grant decree in that action or may postpone the granting of decree for such period as it may consider reasonable in the circumstances or may grant decree subject to such conditions as it may prescribe;

 

Section 3(3):

The court shall grant an application under subsection (1) (a) above if it appears to the court that the application relates to a matrimonial home; and, on an application under any of paragraphs (b) to (e) of subsection (1) or under subsection (2) above, the court may make such order relating to the application as appears to it to be just and reasonable having regard to all the circumstances of the case including-

(a) the conduct of the spouses in relation to each other and otherwise;

(b) the respective needs and financial resources of the spouses;

(c) the needs of any child of the family;

(d) the extent (if any) to which-

(i) the matrimonial home; and

(ii) in relation only to an order under subsection (2) above, any item of furniture and plenishings referred to in that subsection,

is used in connection with a trade, business or profession of either spouse;

Family Law (Scotland) Act 1985

 

Cases referred to: Crow v Crow 1986 SLT 270; Hall v Hall 1987 SLT (ShCt) 15; Berry v Berry 1988 SLT 650; Scrimgeour v Scrimgeour 1988 SLT 590; Rae v Rae 1991 SLT 454; and Larkin v Larkin 1992 SCLR 130; 777; Milne v Milne 1994 SLT (ShCt) 57; Shilliday v Smith 1998 SC 725 ; Eadie Cairns v Programmed Maintenance Painting Ltd [1987] SLT.

 

 

Introduction

 

1. In this action the pursuer seeks declarator that she is entitled to insist on an action of sale of subjects at 159 Tummel Road, Glenrothes, Fife. The defender has opposed this both on the merits of the cause at common law and in terms of the provisions of Section 19 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981. The action which was raised in November 2008 came before me for debate on 15 June 2009. The pursuer was represented by Mr Gleeson, Solicitor and the defender by Ms McKenna, Solicitor. The parties both had preliminary pleas on Record and at the continued Options Hearing the defender had offered a Proof before Answer which the pursuer declined.

 

2. The parties are married but have been separated since 12 August 2007. The circumstances surrounding the breakdown of the parties relationship are of only marginal significance in this case but I will observe that the pursuer formed a relationship with another man, left the former matrimonial home and now cohabits with her new partner. The defender continues to reside in the former matrimonial home. He has now raised proceedings for divorce and seeks financial provision including a transfer of property order in terms of section 8(1)(aa) of the Family Law (Scotland) Act 1985 relating to the former matrimonial home. There are no children under 16 to be considered. The Initial Writ in the divorce action discloses matrimonial assets valued in the region of £192,000.00. The two major assets are the house at Tummel Road worth around £66,000.00 net which is in joint names and Mr McWhirter's occupational pension valued at £ 79,200.00. There is one asset of, as yet, unknown value on Record which is a mobile hairdressing business operated by Mrs McWhirter. The current division of assets (assuming that the value of the house is shared equally as per the title) would seem to show that Mr McWhirter has an interest in or has retained assets to the value of £122,000.00 or so and Mrs Mc Whirter £60,000.00 or so. The divorce action is not directly in play here but it is worth noting that the overall asset value is modest and no doubt there will be issues before the court which may well include balancing the principle of fairly sharing the value of assets; including the merits of pension sharing as opposed to a cash based solution in line with the clean break principle.

 

3. This case would present as a fairly generic dispute between separated spouses, as to the future of the former matrimonial home, were it not for one factor specific to this case: the defender, who occupies the property, has offered to buy out the interest of the pursuer. I will return to this point later. Equally, although this action was raised, as proceedings for division or sale between spouses tend to be, prior to divorce proceedings being initiated the defender has now, as I have observed, raised such proceedings. In any event the pursuer would be able to raise proceedings for divorce, at her own instance, anytime after 12 August 2009 on the grounds of two year separation.

 

4. The position of the parties at debate can be briefly stated as follows. The defender's agent did not insist upon her pleas to the relevance of the pursuer's averments and no longer sought dismissal of the action. She rather defended her pleadings against the pursuer's preliminary plea and moved that the matter should proceed to Proof. She argued that she had a relevant defence at common law based on the offer to purchase. She also advanced her statutory case in terms of section 19 of the 1981 Act. The defender was in occupation of the matrimonial home and it was not reasonable in all the circumstances of the case (which included the offer to purchase) that the defender's occupation be disturbed prior to the resolution of all matters between the parties through the medium of the divorce action. The pursuer's agent moved that I should repel the defender's answers as irrelevant and allow the case to proceed to the next phase of division or sale proceedings and appoint surveyors to report, etc.

 

I will now turn to the submissions in detail.

 

The Submissions for the Pursuer

 

5. Mr Gleeson for the pursuer referred to the terms of his Note under Chapter 22 number 9 of Process. He submitted that the defender's position on record at common law was untenable. It was trite law that owners in common could not be forced to remain such. He pointed out that ownership was not merely a question of heritable title but also obligation. The pursuer was being compelled to remain, as co-owner, liable for all the incidents of proprietorship such as the mortgage payments, insurance and of course the physical condition of the building. She had not lived there or had any effective control over the subjects for a considerable period. This was inequitable and contrary to the well established law in this area. He argued that the only averments founded on by the defender to make out a defence at common law was the so called offer to purchase. This he said was no answer to the pursuers crave in law and in any event the averments were lacking in specification. The defender did not aver how much he was prepared to offer or explain how the pursuer or indeed the court was to test that any such offer was reasonable. Our common law does not contemplate the court adjudicating over the intrinsic value to be placed on property by the parties or assessing the reasonableness or otherwise of the parties attitude towards sale. The pursuer had the right to insist upon realising whatever her pro indiviso share of the subjects might fetch on the open market and to be free of the ancillary obligations associated with ownership of heritable property; plain and simple. It was, Mr Gleeson conceded, for the very reason that our common law position is so straightforward and unanswerable in these matters that Parliament included section 19 of the 1981 Act in the panoply of protections for the potential occupancy rights of separated spouses. He therefore turned to the defenders averments under the Act.

 

6. Mr Gleeson submitted that it was for the defender to make out a relevant and specific statutory case. He rejected any suggestion that an onus lay upon the pursuer arising from the operation of the Act. The defender sought to invoke section 19 of the 1981 Act and clearly any onus lay upon him. He then took me to the provisions of section 19 which are set out at length above. That section refers back to section 3(3)(a)-(d) for greater specification of factors a court should have in view and these subsections are also set out in detail above. He submitted that the statute did not provide (as the legislators could easily have done having made reference to offers of alternative accommodation elsewhere in the Act) that an offer to purchase the other owner's share was a factor of any kind. Equally, the legislation could have provided for an automatic sist of such proceedings where the same parties were engaged in divorce proceedings. There was nothing in the Act which elevated divorce proceedings per se to any paramount status. Instead the Act gave specific guidance to the Court in subsections (a)-(d) referred to above. Mr Gleeson argued that the defender had no averments which could support a finding in terms of any of the statutory grounds. He took me to subparagraph (a) which looked at the conduct of the parties. The defender offered to prove nothing more than that the pursuer would not accept an offer to purchase her half share of the subjects. The pursuer was under no legal obligation to accept any offer or indeed to negotiate with the defender at all in the context of these proceedings. The defender's use of the term "reasonable" was an irrelevant distraction as it was not the proper test in law. There were no averments to set up an evidential basis upon the which the court could properly assess what was reasonable in the circumstances or wehy it should even attempt to do so when dealing with an asset the value of which will plainly depend upon market forces.

 

7. Mr. Gleeson then addressed the remaining sub paragraphs. Paragraph (b) looked to the needs and resources of the parties. He submitted that the defender had no averments which offered to establish any specific needs or resources of the parties of assistance to the Court. Paragraph (c) relates solely to children and paragraph (d) relates to the use of the house in connection with a business or some particular need of the defender's trade or profession. The parties were agreed that no such issues applied in this case.

 

8. Mr Gleeson submitted that the defender's pleadings must stand or fall by examination of the record. The defender has not even taken care to incorporate certain productions, to which his agent referred for specification of elements of the offer to purchase, into the record. He referred me to the well known case of Eadie Cairns and invited me to follow it and disregard those productions when testing relevance. The defender had, therefore, on all points failed to plead a relevant case either at common law or under the statute and the defences fall to be repelled. Further procedure could be determined or resolved at a procedural hearing to follow hereon. He invited me to uphold the pursuer's first Plea in Law and repel all the defender's pleas in law.

 

The Submissions for the Defender

 

9. Ms McKenna for the defender conceded that her common law defence rested solely upon her clients offer to purchase the pursuer's share of the property. She accepted that she advanced this position in the face of the fairly settled common law position but she argued that the defender's case was capable of being taken forward to proof. She put it to me that in a declining market expert opinion evidence could be lead that an offer made by the defender might be more than could be achieved net on the open market and that surely would be reasonable. In any event at this stage at debate the test was relevance and her client offered to prove that it was not necessary to divide or sell the subjects and that could only be tested by evidence.

 

10. She then addressed the defender's averments in support of her statutory case. Ms McKenna submitted that it was enough for her to aver circumstances which put section 19 into issue and from which the court could infer some prejudice and that the onus then lay upon the pursuer to demonstrate that his crave for sale was reasonable. She referred me to the following cases: Crow v Crow 1986 SLT 270; Hall v Hall 1987 SLT (Sh Ct) 15; Berry v Berry 1988 SLT 650; Rae v Rae 1991 SLT 454; Larkin v Larkin 1992 SCLR 130; Milne v Milne 1994 SLT (Sh Ct) 57; and Jamieson v Jamieson 1952 SC (HL) 44. In Crow, a divorce action based upon two years' separation with consent was pending. In an action of division and sale brought by the husband, the wife sought postponement of decree until the 18^th birthday of the youngest child of the marriage, which date would have been long after the granting of decree of divorce. The husband pled that it was incompetent to postpone decree to a date later than the date of decree of divorce. After debate the Lord Ordinary (Wylie) repelled that plea. The ratio of the case is of little assistance here but what may be of some interest is the view expressed by the Lord Ordinary in his opinion (at p 271I-J) regarding the terms of s 19: "These provisions ex facie confer very wide discretionary powers..... . The section is concerned with the situation in which the spouses are joint owners of the matrimonial home and the court has to balance the interest of the spouse who wishes to dispose of the property against the interest of the other spouse in relation to the needs of that spouse and in relation also to 'the needs of any child of the family'

 

11. In Hall v Hall the parties were living under the same roof although occupying separate bedrooms and had no plans to raise an action of divorce. In an action for division and sale at the instance of the husband the sheriff (D B Smith) refused decree and his decision was affirmed by the sheriff principal (Caplan, QC later Lord Caplan) at pp 42-43; 1987 SLT (Sh Ct), p 17; where he said: "Section 19 of the Act does not in its terms state that in applying it the court should pay regard to the occupancy rights of the defending spouse. However, the paramount purpose of the Act is to establish occupancy rights in the matrimonial home and to protect against undue disturbance of such rights..... . Thus although the section makes no direct reference to occupancy rights, the whole tenor of the Act indicates that the restriction on right to division and sale which section 19 imposes is intended to protect the occupancy rights of the defending spouse. The Act does not specify the test the court is to apply in deciding a section 19 issue, although it does set out certain of the factors to be taken into consideration. If a non-entitled spouse was in occupation of the matrimonial home and refused to consent to a sale by the entitled spouse, then the latter could apply to the court under section 7 (1) for a dispensing order if, inter alia, 'such consent is unreasonably withheld' . Thus, in the normal case, if there is no specialty such as mental disability or minority, the occupancy rights of the non-entitled spouse could only be defeated if it could be shown that consent to the sale of the matrimonial home was being unreasonably withheld. This section can give some guidance to a judge applying the less definite provisions of section 19. In the first place, the Act could not have intended that an entitled spouse with a joint interest in the matrimonial home should have less protection for occupancy rights than a non-entitled spouse. Accordingly, the reasonableness of displacing the defending spouse should properly be taken into account in deciding a section 19 case. Secondly, in relation to a section 7 (1) application the onus must clearly be on the applicant spouse to show that consent is being unreasonably withheld. Thus, if in an application aimed against a non-entitled spouse the onus rests on the pursuer to show that protection of occupancy should be lifted, it would be curiously inconsistent if the same did not apply in relation to section 19. The pattern imposed by the legislation is that, prima facie a spouse has a right to continue to occupy the matrimonial home and that it is for the spouse seeking to disturb such right to show that it is reasonable to do so. Thus, in my view, the learned sheriff was right when he decided that it is not for the defender to convince him that she should be allowed to continue in her home but rather for the pursuer to show that it is fair and reasonably necessary to disturb her."

 

12. In Berry v Berry cross actions of divorce were in dependence when the wife raised an action of division and sale in respect of the matrimonial home in which the husband was then residing. The husband pled that decree should be refused or at least postponed until the determination of the actions of divorce. The Lord Ordinary (Sutherland) held that the defence was irrelevant and granted decree de plano. From the Lord Ordinary's summary of the arguments it appears that the principal thrust of the submission for the defender was that, since the questions of the parties' conduct towards each other and their financial resources were to be explored in the course of the divorce actions, it was inappropriate that division and sale would take place prior thereto. That argument was rejected, and the submission for the pursuer that the court should only be concerned with whether or not there were circumstances relating to the right of occupancy of the matrimonial home which should delay the division and sale of the property to which the pursuer would otherwise be entitled was upheld. The Lord Ordinary said at 1988 SLT, p 65:

 

"There is no doubt that the pursuer would be entitled in normal circumstances to the declarator which she seeks and the only reason for preventing such declarator being granted would be if there were circumstances averred which showed that it was necessary for the defender to have continued occupancy of the matrimonial home at least until the time of the divorce" .

 

Ms McKenna observed that it was unfortunate that the attention of the Lord Ordinary was not drawn to the decision in Hall since, although the circumstances of the two cases are entirely different, the Lord Ordinary's approach to the construction of s 19 seems at first sight to be different from that adopted by the sheriff and the sheriff principal in the earlier case.

 

13. Rae v Rae was a sheriff court action of division and sale raised by a husband where it was argued that the cause should be sisted pending resolution of a divorce action raised by the wife in the Court of Session. The sheriff thought himself to be bound by the opinion of the Lord Ordinary in Berry and refused a sist. His decision was reversed by the Inner House which distinguished Berry upon the grounds that (1) the wife had no alternative accommodation for herself and the children or the means to acquire such, and (2) the action of divorce contained a conclusion for transfer of property and not merely for payment of money. It was held that it would be highly prejudicial to the wife to allow an action to proceed to decree which could deprive her of her potential right to a transfer of title, and deprive her of a home in the interim. No question was raised concerning the Lord Ordinary's interpretation of s 19 in Berry and no reference was made to Hall. The case of Larkin is of scant direct relevance here (it proceeded upon the now repealed "Rule 34 Minute" procedure) but the Court observed that the procedure of Division or Sale is "tortuous and expensive" and an all embracing solution within the context of a divorce was preferable. Ms McKenna relied heavily upon the case of Milne but I shall reserve comment upon that case until later.

 

14. Ms McKenna directed me to the wording of section 19 and invited me to note that it gave the court a broad discretion which was not restricted to the factors set out in subparagraphs (a)-(d). The court required to have regard to all the circumstances of the case. The factors referred to offered useful guidance but were not proscriptive in any way. She invited me to consider not only the offer which the defender had made to purchase the property but also to give due weight to the fact that divorce proceedings were now underway. The relevance of the offer was that the pursuer, by raising an action craving sale, clearly did not wish the house for her own occupation but rather sought to release funds. The defender's offer would, equally, release funds without disturbing his right of occupation. More importantly there were sound reasons of principle for according some precedence to an action for divorce. The pursuer had argued that the action of divorce had only been raised in response to this present action, but even if that were so from the pursuers perspective she had provoked a response which would lead to a final resolution of the parties affairs. The divorce action was underway and the statutory framework of the Family Law (Scotland) Act 1985 provides more flexible and final methods of dividing up the family assets. The present action would determine nothing in that regard. Indeed this action would entirely frustrate the defenders crave for a property transfer order. The relevant provisions of the 1985 Act relating to property transfer were enacted partly to answer the mischief of marital assets being sold or disposed of by one party, even in the face of a substantial award of capital sum in favour of the other, simply out of spite.

 

15. In summation she submitted that the balance of authority favoured the defender and that the pursuer had failed to meet the very high test established in Jamieson; even if she proved all that she offered to prove she must fail. The defender offered to prove that division or sale was not necessary for the pursuer to realise her interest in the property. This was relevant and a matter for proof. She, equally, pointed to circumstances of this case which should lead me to conclude that the defender had sufficient specific and relevant grounds to invoke the provisions of section 19 of the 1981 Act. She invited me to repel the defender's First Plea in law and either sist the cause pending the resolution of the divorce action or to allow a Proof.

 

Discussion

 

16. The solicitors for both parties quite properly conceded that the pursuer would ordinarily be entitled to division and sale as a matter of right. That rule was however subject to certain limited exceptions. I was not referred to it by the parties but the position is conveniently set out in Professor Kenneth Reid's contribution to the Stair Encyclopaedia (Vol 18, para 32). Under the heading "Division and sale; entitlement" the learned author commented:

 

"Any one co-owner is entitled to realise his share by having the property divided up rateably or, if physical division is impracticable, by having the property sold and the proceeds divided. The rule applies to all common property, whether heritable or moveable, corporeal or incorporeal, although the reported cases are exclusively concerned with land. The appropriate action is one for division, or, as in practice almost always, for division or sale. Subject to the limited exceptions mentioned below, the right to division and sale is an absolute right to which no defence will be entertained."

 

Thereafter, Professor Reid set out four exceptions:

"First, it is not available where the parties have contracted to that effect ....... Secondly, a proprietor may be personally barred from insisting on division and sale. Thirdly, Bell states that division and sale is not available in respect of a thing of common and indispensable use ...... Finally, there are special statutory rules for matrimonial homes which restrict, but do not exclude, the right to division and sale". I concur with and accept as good law the learned authors analysis.

 

17. The defender in this case raises two lines of defence. She is clearly, on the Professor's analysis, entitled to put in issue her clients rights under the 1981 Act or, as he has it, the Fourth Exception. I will return to that later. I cannot, however, reconcile the defenders position on Record, even as extrapolated in debate, with any of the other exceptions. The parties have not entered into any ancillary contract: for example an existing Separation Agreement. There is no suggestion of personal bar: for example an invitation from the pursuer to make an offer to purchase which was subsequently reneged upon. There is no suggestion of common or indispensable use; although this factor also arises under section 19 and may indeed have informed the legislators' deliberations on this point. I did, however, in fairness to the detailed submissions made by both parties on the common law defence based on the offer to purchase, raise at my own hand with agents the case of Scrimgeour which is fully cited above. This is an interesting case in which Lord McCluskey (admittedly without the benefit of a contradictor as the action was undefended) examines in some detail the underlying Roman law texts. He specifically relies upon passages from the Institutes of Justinian and his Codex which authorise judges in an Actio Communi Dividundo to assign the whole property to one co-owner where the property is not readily capable of division and that owner offers the highest price. His Lordship observes that earlier Scots procedure in this field demanded that the sale be by Roup (auction) and therefore knocking the property down to one co-owner was merely a variant on an auction save that it would be "closed" or restricted to the co-owners themselves. The factual background was of a wife who had been granted decree for a capital sum which the husband refused to pay. She then raised an action for division and sale and for the reasons outlined above, Lord McCluskey resolved to transfer the title to her.

 

18. Ms McKenna, not surprisingly, aligned herself with the Court in Scrimgeour. Mr Gleeson sought to distinguish Scrimgeour : it should be considered peculiar to its own facts as there was no contradictor and the wife was already divorced and effectively discharged her already judicially determined right to capital in favour of division and sale. Here the parties were still married and no adjudication had been made on their respective rights under the Family Law (Scotland) Act 1985. I, having raised the hare of Scrimgeour, accept the argument advanced by Mr Gleeson that it is not in point in this case. In any event I also accept the observations of the Lord President (Rodger of Earlsferry) in Shilliday v Smith, cited above, that whilst Scots Law may use the vocabulary of Justinian and the other Roman law texts in matters of this nature in deference to the Institutional commentators on Scots law such as Stair, it is doubtful, academically, to what extent our present systems are truly founded upon Civilian Law and come what may, our Courts today are certainly not bound by it.

 

19. I am, therefore, not persuaded that there is any relevance or merit in the defender's common law averments. I turn now to the defenders case under section 19 of the 1981 Act.

 

20. Mr Gleeson contended for the pursuer was that he was entitled to the declarator sought unless the defender offered relevant and specific averments that demonstrated that she some evidential basis for her section 19 defence. It was up to the defender to offer averments that there was something beyond mere inconvenience which made it necessary for him to remain in the subjects. He referred to the same line of authority as Ms McKenna but argued that, whilst they were divided on the question of onus, I should follow Berry which firmly laid it upon the party invoking section 19. The other cases were less dogmatic. I have reflected upon the, admittedly, conflicting case law and find myself persuaded that the greatest assistance is derived from Milne where Sheriff Principal Risk QC carried out a detailed analysis of the earlier case law from Crow onwards and I can do no better than to quote from the learned Sheriff Principal's judgement (at Page 60)

 

"Section 19 receives its most detailed consideration in Hall v Hall. Apparently no preliminary pleas were tabled and the case was decided after proof. Both the sheriff and the sheriff principal noted that s 19 required the court to exercise a discretion and that Parliament had given no indication of the test to be applied in exercising that discretion. I find the reasoning of the sheriff and sheriff principal, which I have cited at length above, persuasive. In particular, I agree that Parliament cannot possibly have intended that a non-entitled spouse to whom s 7 would apply should be in a stronger position than a co-proprietor to whom s 19 applies. So far as the onus of proof is concerned, the question will not often arise after evidence has been led, but the actual words of s 19 seem to me to be quite neutral; the section does not say either that the court shall only grant decree if it considers it reasonable to do so, or that it shall be a defence for the defender to establish that it would not be reasonable to grant decree; it merely says that the court shall take account of certain circumstances and exercise a discretion. Nevertheless it respectfully seems to me that the approach of the sheriff and the sheriff principal in Hall is a sound and practical one. In the light of the foregoing discussion I would tentatively advance the following propositions: (1) where an action of division and sale is raised it is for the defender to put s 19 in issue by averring circumstances upon which a reasonable court would be entitled to exercise its discretion by refusing or postponing decree (Berry); (2) it is sufficient to constitute a relevant defence that the defender requires to continue to occupy the matrimonial home along with a child or children (Crow, Rae); and (3) once proof has taken place the court must take account of such facts as have been established and are relevant in terms of s 19 and apply its discretion thereto. There may be an onus on the pursuer but there is no onus on the defender (Hall).

 

I respectfully agree with the Learned Sheriff Principal.

 

21. I accordingly have applied the tests set out in Milne to the defenders submissions. The defender has put section 19 of the 1981 Act in issue by averring circumstances upon which a reasonable court would be entitled to exercise its discretion by refusing or postponing decree. The defender's offer to purchase the pursuer's share may not be a defence at common law nor may it be realistic to expect the pursuer to wish to accept it but it is a perfectly proper attempt at resolution of the eternal dilemma of matrimonial homes occupied by one party locking up equity needed by the other. I am, however, persuaded that the deciding factor is the existence of the divorce action and the defenders crave for property transfer. Our regime on divorce (and it is not so elsewhere) places a considerable emphasis on the "clean break" principle by which the bonds of matrimony (social and financial) should severed, where possible, in one fell swoop. The present action takes only one asset of the family and seeks to divide it by the crude method of following the title deeds that were not drafted with divorce in contemplation. This will resolve nothing between the parties according to the principles of the 1985 Act but will, as Ms McKenna observed, torpedo the defenders crave for property transfer.

 

22. These factors are sufficient in my judgement to form the basis of a relevant and potentially successful application under section 19 for refusal or postponement of the orders sought by the pursuer. It follows that I hold that although Mr Gleeson has persuaded me to exclude the defenders averments so far as directed to the common law he has failed to persuade me that the defenders pleadings relating to Section 19 fail the Jamieson test and should be excluded from probation.

 

23. I shall put this case out to a procedural hearing for agents to address me on the question of expenses and further procedure.

 

GAW