Scottish Sheriff Court Decisions

SHERIFFDOM OF TAYSIDE, CENTRAL AND FIFE AT FALKIRK

 

A139/11   JUDGMENT   of   SHERIFF THOMAS McCARTNEY   in causa   TRUDI ELISABETH HOPE OR DUNCAN, residing at 104 Calder Place, Hallglen, Falkirk FK1 2QQ (Assisted Person) Pursuer;   against   ROBERT DUNCAN, residing at 17 Stevenson Street, Grangemouth FK3 8QX Respondent:   _____________

 

 

 

FALKIRK        March 2012

The Sheriff having resumed consideration of the cause, repels the defender's pleas-in-law, grants decree de plano in terms of Crave 1 for the pursuer, quoad ultra continues consideration of the pursuer's Craves and assigns a hearing thereon and for parties to be heard on the question of expenses for Friday 4 May 2012 at 10am.

NOTE:
1. This is an action for the sale of heritable subjects at 17 Stevenson Street, Grangemouth, of which the parties are the pro indiviso heritable proprietors. It is agreed that the subjects are incapable of division. The case called for debate on 20 March 2012 in respect of the pursuer's preliminary plea (plea in law 1) that the defender's averments being irrelevant and lacking specification, decree should be granted de plano. At the diet of debate, the pursuer was represented by Mr Stirling, solicitor, and the defender was represented by Mr Travers, solicitor.

Submissions for pursuer
1. The submission for the pursuer was in terms of the written submission provided by Mr Stirling. It was submitted that until the Matrimonial Homes (Family Protection) (Scotland) Act 1981("the 1981 Act") there was no real defence to an action of division and sale if the title was in joint names and there was no agreement on sale. The 1981 Act gave a defence only in respect of a matrimonial home. It is not averred by the defender that the subjects are a matrimonial home to which the 1981 Act applies.

3. In any event there is no reference to the 1981 Act or to any of its sections. If the defender was relying on the 1981 Act the defender would have to aver the Act itself and the sections on which he was relying and how these applied to the circumstances averred in his defences. Even if the 1981 Act was taken into account, the refusal of decree of division and sale is discretionary and no circumstances are averred to justify refusal of decree.

4. Further the defences are so lacking in specification as to be completely irrelevant. Decree de plano should be granted as craved.

Submissions for defender
5. Mr Travers for the defender referred to the case of McWhirter v McWhirter, a decision of Sheriff Way at Kirkcaldy Sheriff Court on 14 July 2009 (Case number A841/08). He submitted that the circumstances there were very similar to the present action in that there was an action of division and sale and an action of divorce both proceeding at the same time. Mr Travers accepted that there was no specific averment in the defences that the subjects were the matrimonial home but that that was not necessarily fatal. He submitted that the pursuer had been put on proper notice of the issue which is in terms of section 19 of the 1981 Act. When the record is read in context, it is clear that a section 19 defence is being relied on. Mr Travers pointed out that the pursuer has lodged a copy of the initial writ in the divorce action in which a property transfer order is sought and it would be disingenuous for the pursuer to suggest she is not on proper notice as to the defender's decision.

6. It was accepted that under normal circumstances an owner in common can insist upon an action of division and sale as an almost absolute right. It was submitted that does not apply in the present circumstances where the property is a matrimonial home and the defender makes sufficient averments to enable the court to exercise its discretionary power in terms of s.19 of the 1981. It was submitted that the present case was almost on all fours with the case of McWhirter v McWhirter in which Sheriff Way had concluded that the defender had 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. In McWhirter, Sheriff Way had concluded that there was a relevant defence in terms of section 19 of the 1981 Act. Mr Travers submitted that given that the defender has placed a section 19 defence at issue and since it is a discretionary matter, that discretion cannot be exercised without enquiry into the facts.

Decision

7. The subjects at 17 Stevenson Street, Grangemouth, are owned in common by the pursuer and the defender. They are incapable of division. That is admitted by the defender. The pursuer seeks an order for the sale of the subjects. At common law the pursuer is entitled to division and sale as a matter of right subject to certain limited exceptions none of which it was suggested applied in this case.

8. Section 19 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 provides as follows:

"Section 19. Where the spouse brings an action for the division and sale of the matrimonial home which the spouses own in common, the court, after having regard to all the circumstances of the case including -

(a) the matters referred to in paragraphs (a) to (d) of section 3(3); 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."

9. The matter specified in paragraphs (a) to (d) of section 3(3) of the Act are the conduct of the spouses in relation to each other and otherwise, the respective needs and financial resources of the spouses, the needs of any child of the family and the extent (if any) to which the matrimonial home is used in connection with a trade, business or profession of either spouse.

10. While the defender does not specifically refer to the 1981 Act in his pleas-in-law, he does make averments which could be regarded as relating to the conduct of the spouses in relation to each other and otherwise and the needs and financial resources of the parties although these are very general in their terms and lacking in sufficient specification to give fair notice to the pursuer.

11. The main difficulty for the defender is that the statutory defence in terms of section 19 of the 1981 Act applies only in respect of a matrimonial home as defined in the 1981 Act. A "matrimonial home" for the purposes of the 1981 Act means (in terms of section 22) "any house ... which has been provided or has been made available by one or both of the spouses as, or has become, a family residence."

The defender does not aver that the subjects at 17 Stevenson Street are a matrimonial home in terms of the 1981 Act or facts that would bring the subjects within that definition. That the parties are the pro indiviso heritable proprietors of the subjects does not make the subjects "a matrimonial home" for the purposes of the 1981 Act. That the subjects are presently occupied by the defender does bring it within the definition of "matrimonial home" in terms of the 1981 Act. The definition of "a matrimonial home" for the purposes of the 1981 Act is different from matrimonial property in terms of the Family Law (Scotland) Act 1985. The defender's present residence in the subjects does not make them a matrimonial home in terms of the 1981 Act.

12. Before the defender could succeed in a defence based upon s.19 of the 1981 Act, the court would have to be able to find as fact that the subjects were a matrimonial home in terms of the 1981 Act, being a house which has been provided or has been made available by one or more of the spouses as, or has become, a family residence. In the absence of any averment based upon which the defender would be able to lead evidence to prove that essential fact, any defence based upon section 19 of the 1981 Act, even if it was adequately specified must inevitably fail.

13. Therefore I have concluded that there is no relevant defence stated to this action. Following from that, I have repelled the defender's pleas-in-law and granted decree de plano in terms of Crave 1 for the pursuer.

14. So far as the remaining Craves for the pursuer are concerned, in the case of a judicial sale of this kind, the court is exercising an equitable jurisdiction and in exercising this jurisdiction, the court has to have regard to the interests of all legal proprietors, the aim being to effect a sale which is fair to all parties. I refer parties to Macphail, Sheriff Court Practice, paragraphs 23.37 to 23.41. I have put the matter out for a hearing before making any further order in respect of the sale of the subjects. I was not addressed regarding expenses and I have assigned the hearing in respect of expenses for the same date.