Partner's award upheld of half share in house equity following split
A sheriff principal was entitled to award a former cohabiting partner half the equity in the shared family home that was in the other partner's name, on findings that the owning partner could not have afforded the mortgage on her own and had derived economic advantage from contributions by the pursuer, the appeal court has ruled.
Lord President Carloway, Lady Smith and Lord Brodie gave the ruling in refusing an appeal by Fiona Christie against the award in favour of her former partner Alexander Melvin by the sheriff principal at Aberdeen, on the pursuer's claim under s 28 of the Family Law (Scotland) Act 2006.
The parties had cohabited from 1991 or 1992 until November 2007, and had two children. They lived in various houses, the first of which had been purchased jointly and in joint names but subsequent ones in Ms Christie's sole name. The sheriff found that she could not have afforded the mortgage "without input of some kind" from Mr Mackie, and that they made equal contributions to their general expenditure.
At first instance, however, the claim failed, the pursuer having sought to found also on economic disadvantage suffered in the defender's interests but the sheriff holding that there was no evidence of intent to benefit the defender. That followed the Inner House decision in Gow v Grant, which was subsequently overturned by the UK Supreme Court on the basis that what mattered was fair compensation for contributions made or economic disadvantages suffered in the interests of the relationship on a broad assessment.
On appeal, the sheriff principal was satisfied that, at the end of the relationship, there was a significant economic advantage held by the defender in the form of the equity in the house, the parties had been making broadly equal contributions to general expenditure, and he could conclude that that economic advantage was derived from contributions by the pursuer.
Before the Inner House the defender argued that the sheriff principal had failed to have regard to the potentially offsetting matters in s 28(5) and (6), and had relied too much on the broad concept of fairness as opposed to finding the required link between contributions made and economic advantage to the other party.
Lady Smith, delivering the opinion of the court, said however that a party relying on the offsetting provisions had to plead and lead evidence on the necessary matters, and the defender had not done so. "The task for the court is to resolve the issues raised, not to embark on an inevitably sterile or academic exercise", she commented.
On the fairness point, the sheriff principal had not altered his views as compared with an earlier case, as argued for the defender, and there was no obligation on him to seek further submissions: his view continued to be that a causal link was required, and one could be identified in this case even though a direct relationship could not be proved.
No challenge was made to the amount of the award, £29,515, but interest should have been ordered to run from the date of the award rather than the date of citation.