An interesting contest – Family Law –v- Property Law?

justiceA recent decision by the Sheriff Appeal Court in the case of Grant v Grant has shed some light on the situation where the law of property conflicts with family law and once again underlines the need for pre-nuptial agreements where one party is bringing assets into the relationship of a value greater than any assets which may be brought into the marriage by the other party.

In this case the issue was whether or not certain property comprising a plot of ground and a house which had been built on it, could be considered to be matrimonial property. The law of property states that the owner of land owns everything which is built on that land irrespective of who has paid for it. In the current case land was owned by the husband before marriage and a house was built on that land during the marriage. The Sheriff at first instance held that the land belonged to the husband but that the building materials which were used could be deemed to represent matrimonial property. Neither party agreed with the Sheriff’s decision which appeared to be a mixture between the law of property and family law. The parties agreed that either the house and the land upon which it was built was matrimonial property or it was not. There could not be a “middle cause” on the matter in dispute. The husband argued that the house and land were not matrimonial property since the land was acquired by him prior to the commencement of the parties relationship, some seven years prior to the marriage. When the house was built the house acceded to the land and therefore as the land was not matrimonial property the house itself was not matrimonial property.

Not surprisingly the wife took a different view and argued that both the house and the land were matrimonial property. Instead of relying on the law of property she relied on the terms of the Family Law (Scotland) Act, 1985 and argued. In family law an essential step in seeking to resolve matters is to identify the extent of the matrimonial property. The definition of “matrimonial property” is not one derived from property law, but is a creation of the 1985 Act and in particular Sections 9 and 10 of that Act. The term “matrimonial property” is defined as meaning “all property belonging to the parties or either of them at the relevant date i.e. the date of separation which was acquired by them or him……. before the marriage for use by them as a family home………. or during the marriage but before the date of separation”.

The Appeal Court took the view, in addressing what constituted the property in question, that this comprised both the house and the land upon which it was built. It should be seen to be a single item of property and not, as the Sheriff determined, property which falls into two separate classes namely the land itself on the one hand and the constituent elements of the house built upon it on the other. They then concluded that the single item of property in issue could only have been “acquired” when the house was completed i.e. during the marriage. The third matter which the Appeal Court had to consider was whether or not the property was acquired as a matrimonial home. Whilst the facts of the current case did not fit easily into authorities dealing with this matter the Court took the view that the wife had made sufficient averments to at least warrant enquiry as to whether or not the disputed property is matrimonial property. Whilst the Appeal Court did not find that the property did in fact comprise matrimonial property they at least allowed the wife the opportunity to lead evidence in support of her contention that it did.

For any further information or advice on the contents of the above article or any other Family Law related matter please contact Graham A. Garden by telephone on (01569) 763555 or by email at or any of our members of our Family Law team.

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