Sheriff Appeal Court confirms matrimonial property is a family law, not property law, matter

Scottish Legal News

A man who claimed that both a house and the land on which it was built should not be considered “matrimonial property” after his wife raised an action for divorce has had his appeal dismissed.

A sheriff had ruled that the land on which the house had been built was not matrimonial property while the house was, but William Grant argued that since he purchased the land before meeting his wife-to-be Gail Grant, when the house was built it “acceded” to the land and therefore neither were matrimonial property.

However, the Sheriff Appeal Court rejected the appellant’s “property law approach” and allowed a cross-appeal by the respondent, who argued that both the land and the house should constitute matrimonial property in terms of the Family Law (Scotland) Act 1985.

Matrimonial property 

Sheriff Principal Craig Turnbull, sitting with Appeal Sheriff Holligan and Appeal Sheriff Small, heard that the appellant acquired the land in 1994 and later that year he and the respondent commenced a relationship.

The parties began living together in February 1996, initially in a flat in Aberdeen and thereafter, from July 1996, in a mobile home situated on the land.

The couple engaged the services of an architect to design a new home to be built on the land and, having been granted planning permission, building work began in July 1997 and was completed in October that year.

At the time the house was completed the parties had resided together for more than a year and intended to continue to live in their new home together as a family.

The couple subsequently had two children together, born in June 1998 and April 2001 respectively, before marrying in June 2003, and they lived together in the house until January 2008 when they separated.

The pursuer respondent commenced proceedings against the appellant in Aberdeen Sheriff Court for divorce and payment of a capital sum, and following a debate the sheriff found that the land on which the house had been built was not matrimonial property, whereas “the building materials that came to represent the physical embodiment of the house” were.

‘House acceded to the land’

Mr Grant appealed against that decision, arguing that the house and the land were not matrimonial property.

The appellant contended that as the land was acquired by the appellant prior to the commencement of the parties’ relationship – and some six years prior to their marriage – it was not matrimonial property.

When the house was built upon the land, the house acceded to the land and the result of accession was that the accessory, namely, the house, became part of the principal, namely, the land.

It was submitted that as the land was not matrimonial property, and as the house became part of the land when it acceded to it, the house was also not matrimonial property.

However, the respondent cross-appealed, arguing that both the land and the house were matrimonial property.

It was accepted that the submissions made by the appellant in relation to the law of accession were uncontroversial, but the respondent maintained that while that provided an answer as to who owned the house built upon the land, it did not determine whether the house and the land were matrimonial property in terms of the 1995 Act.

The respondent submitted that, on a proper interpretation of the 1985 Act, the land and the house were matrimonial property.

Sheriff erred in law

Refusing the appeal and allowing the cross-appeal, the appeal sheriffs agreed that the sheriff had “fallen into error” and remitted the action back to the sheriff court for a proof before answer.

Delivering the opinion of the court, Sheriff Principal Turnbull said: “The first question to address is what, in fact, constitutes the property in question. Only by addressing that question can one then move to the second question which is when was that property acquired.

“The property in question comprises both the house and the land upon which it is erected. It is a single item of property not, as the sheriff determined, property which falls in to two separate classes, namely, the land itself on the one hand; and the constituent elements of the house built upon it on the other. That single item of property belonged to the appellant at the relevant date.

“Moving therefore to the second question, the single item of property in issue can only have been ‘acquired’ as and when the house was completed. The appellant seeks to approach the matter as one of property law. It is not.

“The property was, on the respondent’s averments, acquired by the appellant before the marriage for use by the parties as a family home. The law of accession regulates ownership of the property in question; it does not affect whether or not that property is matrimonial property for the purposes of the 1985 Act.

“The third question is whether the property was acquired for use as a family home… Whether the terms of section 10(4)(b) are satisfied requires factual inquiry which includes evidence of the parties’ intentions. In the unusual factual circumstances of the present case, in our opinion, the pursuer has averred sufficient to warrant inquiry as to whether the disputed property is matrimonial property.”

He added: “In conclusion, if the facts averred by the respondent were to be established after proof, the property comprising the house and the land upon which it is erected is matrimonial property.”