A burden discharged

The Matrimonial Homes (Family Protection) (Scotland) Act 1981 offers protection to spouses who seek to defend a common law action for the division and sale of their home.

Section 19 provides that where a spouse brings an action for the division and sale of a matrimonial home which the spouses own in common, the court, having regard to all the circumstances of the case, including “the conduct of the spouses in relation to each other, the respective needs and resources of the spouses and 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.

There are few reported cases relating to the application of s 19. However, on 8 June 2010, Sheriff Horsburgh delivered his judgment in the case of B v B (summarised in 2010 GWD 24-448 and reported in full on Westlaw at 2010 WL 2695000). The defender wife had shared the home in question with the pursuer husband for 14 years of their 36-year marriage and she sought to rely on s 19.

B v B is an important and interesting case for family law practitioners for two main reasons: the issue of burden of proof and the application of the evidence with regard to the terms of s 19.

Burden of proof

To date, there has clearly been an inconsistency of opinion regarding with which party the burden rests.

In Hall v Hall 1987 SLT (Sh Ct) 15, following lengthy analysis of this particular point, both the sheriff and the sheriff principal on appeal held that it is for the spouse seeking to disturb a right to occupy a matrimonial home to show that it is reasonable to do so. In Milne v Milne 1994 GWD 24-1463, the sheriff also held that the onus of proof lay with the pursuer.

In B v B the pursuer’s agent, relying primarily on Berry v Berry 1988 SLT 650, successfully convinced the sheriff that the onus lay with the defender. Sheriff Horsburgh has now, helpfully, clarified and simplified the issue of where the burden lies: “In my view, the general rule, applicable to both persuasive and evidential burdens of proof, that the party who raises an issue must prove it, applies. Thus the onus of proof here should lie on the defender, as the party relying on the statutorily-provided limitation to the common law right of a co-owner to apply for division and sale at any time.”

Establishing the defence

In B v B, the burden of proof was successfully discharged by the defender. Sheriff Horsburgh found that the pursuer was not entitled to insist on an action of division and sale.

Both parties were elderly and had granted powers of attorney. The pursuer appointed his daughter from a previous marriage and the defender appointed her sister. The pursuer was a patient of the Royal Edinburgh Hospital and suffering from Lewy Body dementia at the time the case called for proof, and the defender was too frail to attend court. The pursuer clearly had no wish to divorce his wife. Consequently, it was primarily on the evidence of the attorneys that the sheriff had to rely in making his decision.

In brief, the case for the pursuer was founded on the proposition that the pursuer required his share of the sale proceeds of the property to pay for increased levels of care. The defender contended that the pursuer had never required, nor would ever require, his share in the equity in order to provide him with a better quality of life. It was also important that the existence of a survivorship destination in the title to the property was not ignored, especially in the context of the poor relationship between the pursuer’s attorney and the defender. Further, no alternative accommodation had been offered to the defender by the pursuer or his attorney. On the basis of the evidence before him, the sheriff clearly favoured the defender’s position with regard to each aspect of the s 19 defence.

The particular circumstances of B v B are undoubtedly unusual, but the analysis of the sheriff with regard both to the issue of burden and application of the s 19 defence will provide useful guidance in such actions for the future.

The case is now the subject of an appeal by the pursuer to the Inner House.

• Sarah Lilley is a solicitor in Bonar Mackenzie’s Family Law Team and represented the defender in B v B