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	Scottish Sheriff Court Decisions
You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> Christie v. Christie [2004] ScotSC 21 (12 March 2004) URL: http://www.bailii.org/scot/cases/ScotSC/2004/21.html Cite as: [2004] ScotSC 21

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PAISLEY, 8 MARCH 2004

The Sheriff Principal, having resumed consideration of the cause Refuses the appeal and Adheres to the interlocutors of the sheriff dated 23 September and 6 October 2003; Finds the defender and appellant liable to the pursuer and respondent in the expenses of the appeal procedure; Allows an account thereof to be given in and Remits same when lodged to the auditor of court to tax and to report thereon; Remits the cause to the sheriff to proceed as accords.

BA Kerr

NOTE:

In this action of divorce the wife pursuer, who had left the matrimonial home in Linwood with the child of the marriage on 21 November 2001 ("the relevant date"), commenced the proceedings by a writ containing initially craves for inter alia (i) the transfer to her of the defender's interest in the matrimonial home (and the assignation to her of endowment policies relative to the heritable loan secured over the house), (ii) payment to her of a capital sum and (iii) a pension sharing order. At the proof (which was conducted by submissions proceeding on a joint minute of agreed facts without the leading of any evidence) the pursuer in effect withdrew or at least did not insist in the latter two of these craves and perilled her case on obtaining a transfer order to her of the title to the matrimonial home and the relative policy assignations. This the sheriff was persuaded to grant and the present appeal is founded upon the proposition that in so doing the sheriff fell into error because he could and should have made other orders (by way of sale of the matrimonial home or payment of a capital sum or a pension sharing order or a combination of these) which would have achieved a more equal and thus more equitable sharing of the matrimonial assets. Implicit in this proposition is the idea that a property transfer order produces an inequitable result, certainly in the present case and presumably therefore in many others, because of the increase which has occurred in the value of the former matrimonial home between the date of final separation (or "relevant date") and the date of the proof or decree of divorce. In the present case (as in many others) that transfer will result in the pursuer obtaining the whole benefit of that increase in value although she has until the granting of the property transfer order been the owner of only one half of the house and has moreover not been funding the heritable loan over it out of her own pocket at any time and particularly not since the separation. In such a situation, the argument runs, the court should if possible refrain from making a property transfer order and should instead make other types of order for division of the matrimonial property if such are available in the circumstances of the case. The sheriff had erred, it was maintained, by opting for an unequal basis of division without identifying any special circumstances which could justify a departure from equal division. Such was the import of the first ground of appeal in the note of appeal (number 14 of process). No submission directly in support of the second ground of appeal was made to me.

The appellant's approach to the matter is reflected in his pleadings on record: at the end of answer 4 it is averred that properties in Linwood of similar type have increased in value by fifteen per cent per annum since the relevant date and that a transfer of title to the pursuer would result in an unequal sharing in her favour of the matrimonial property. In the joint minute number 13 of process at the final paragraph it was an agreed fact that the value of the matrimonial home had increased by fifteen per cent per annum since the relevant date: the respondent's agent contended before me that although that was agreed as a matter of fact it nevertheless was irrelevant as a matter of law.

The sheriff in his judgement dated 23 September 2003 has set out eleven findings-in-fact which (entirely reasonably in the circumstances) are a straightforward recital of the content of the joint minute number 13 of process. In his findings-in-fact-and-law and the operative part of his interlocutor he finds the net value of the matrimonial property at the relevant date to have been £73,260.74, that the proper basis for a fair sharing in this case is one of equal division, that for that purpose there should be a transfer to the pursuer of the defender's interest in the former matrimonial home and relative endowment policies (no account being taken of any increase in value since the relevant date) and then proceeds to make the orders for transfer of property sought by the pursuer. In his subjoined note he narrates inter alia that the issue in dispute was the reasonableness of these craves (numbers 2 and 4) by the pursuer for transfers of property and that in addressing him the pursuer's solicitor did not insist in the pursuer's third and sixth craves (for capital sum and pension sharing order) but only in the second and fourth (for the property transfer orders) and the eighth (expenses). He summarises the submissions on both sides, including certain references made by each to assertions concerning the residential arrangements of the pursuer and the child of the marriage since the separation and their desire to return to their former home, that being of course also the home of the defender who had continued to reside there and pay for its upkeep. He notes inter alia that it was submitted for the defender that the jointly-owned matrimonial home should be sold (despite the absence of any crave to that or any other effect for the defender) and that there should be a pension sharing order and a capital payment to the pursuer as originally craved by her (in terms of craves 6 and 3 in which she was now no longer insisting). He then goes on (in a section headed "Decision") to explain how he came to the conclusion that the pursuer was entitled to the orders for transfer of property in terms of craves 2 and 4 now being insisted in by her. He recited the relevant statutory provisions of the 1985 Act and a relevant passage from the opinion in the Court of Session of Lord President Hope in the case of Wallis later approved in the House of Lords (Wallis v Wallis 1993 SC(HL) 49; 1993 SLT 1348; 1992 SC 455; 1992 SLT 676). In light of these statutory provisions and judicial pronouncements he decided that the submissions of the pursuer should be preferred to those of the defender (without regard being had to any increase in the value of the matrimonial home since the relevant date). He then went on to discuss certain further matters which he considered relevant and supportive of the view that the making of the transfer of property orders sought by the pursuer was appropriate in the circumstances of the case. These were a legislative purpose to achieve finality in the division of matrimonial property, the absence of craves tabled for the defender to support the submissions made on his behalf and the need for the pursuer and the child of the marriage to return from residing at the pursuer's sister's house to their former home. He later (on 6 October 2003) awarded the expenses of the action to the pursuer on her unopposed motion; at the same time he granted decree of divorce (on the basis of affidavits lodged since 23 September 2003) and incorporated an agreed provision to effect a transfer from the defender to the pursuer of future liability for the heritable loan over the house.

At the outset of the hearing of the appeal a motion was made for the defender and appellant and granted without objection to allow the record to be amended in terms of the minute number 15 of process by the insertion of a new crave and relative plea-in-law for the defender seeking an order for the sale of the former matrimonial home. The clear purpose of the amendment was to circumvent a difficulty perceived by the sheriff as arising from the absence of such a crave or any other crave for the defender when the case was before him. The motion for the appellant made to me was for recall of the sheriff's interlocutors of 23 September and 6 October 2003 and primarily for an order for the sale of the matrimonial home (whose free proceeds would then be divided equally) together with a pension sharing order in respect of his two pensions or a capital payment to the pursuer/respondent or some combination of these two. Alternatively, but secondarily and less preferred, there could be a much larger capital payment ordered in favour of the pursuer/respondent based on the values of the pensions and other savings; the matrimonial home would remain unsold and continue in the joint names of the parties as it had been hitherto (both of whom would then continue to benefit from its still increasing value). The motion for the respondent was straightforwardly for adherence to the interlocutors of the sheriff which it was maintained had been correctly and properly arrived at, so that the amendment to incorporate a new crave for the defender/appellant was of no consequence.

On behalf of the appellant it was submitted inter alia that the sheriff's third finding-in-fact-and-law should be deleted on the view that it was not necessary (the word used by the sheriff) to make property transfer orders in respect of the house and policies in order to achieve an equal sharing: instead there were other options available for the achievement of that object to which the sheriff had failed to give consideration, including sale of the house and/or a pension sharing order and/or a capital payment to the pursuer, despite these other options having been placed before him by the defender's agent in addressing him at the proof diet. This was the approach correctly adopted by Sheriff Bell in Quinn v Quinn 2003 SLT (Sh.Ct.) 5 where the court looked first to see what other options were available and whether a course other than a property transfer order could be justified in order by some other method of distribution to avoid the inevitable inequities of a transfer order governed by the rule enunciated in the case of Wallis. It was suggested that the "normal or orthodox approach" of the court in ordering financial provision in divorce was to make an order for a capital payment of a fixed sum: this suggestion was made under reference to an observation of Lord Caplan in Macdonald v Macdonald 1992 SCLR 132 at 136. It was maintained that the sheriff had mistakenly assumed that a property transfer order would result in an equal division of the matrimonial property whereas in reality it produced an unequal one due to the effect of the decision in Wallis: accordingly the sheriff should first have considered (as Sheriff Bell had done) whether there were any special circumstances to justify an unequal division and if not what other methods were available of achieving an equal division. In the present case there were no such special circumstances and no finding-in-fact to that effect such as could justify the unequal division flowing from the property transfer orders ordered by the sheriff. Here an equal division was accepted by both sides as appropriate and the question was what suitable means existed of providing one: to this the answer was not a property transfer order which created an unequal division without the justification of any special circumstances. It was further submitted that the sheriff had no basis in fact for opting for a property transfer order and that in particular his attempt at page ten of his note to justify such an order by reference to the pursuer's averments concerning her and the child's accommodation was unavailing since those averments were not admitted, had not been spoken to in evidence in any way, were not the subject of agreement in the joint minute and had not become the subject of any findings-in-fact. Accordingly the sheriff's interlocutor should be recalled and a new order for financial provision pronounced by the sheriff principal along the lines earlier indicated, including preferably an order for sale of the house together with a pension sharing order and/or a capital payment or some combination of the three. Specifically there should be a pension sharing order giving the pursuer one half of the defender's entitlement under each of the pensions with Rolls Royce and the Howden Group (or sixty per cent of the Rolls Royce pension alone) and a capital payment of some fifteen hundred pounds. Alternatively the values in paragraph 6 to 9 inclusive of the joint minute should be taken as the basis for ordering a capital payment to the pursuer of forty per cent of £38,461 plus forty per cent of £3697 plus fifty per cent of £2245 plus fifty per cent of £671 (giving a total sum of £18,000 or more). I had the impression that the full detail of these proposed orders had yet to be worked out and that it would be largely for me to decide upon the best solution to produce a fair sharing of the matrimonial property. In particular no thought appeared yet to have been given to the complications and ramifications attendant upon the making of a pension sharing order which requires to be intimated to the pension provider in accordance with certain timescales and it was recognised therefore that some further procedure would be required in the event of my deciding that a pension sharing order would be appropriate in the circumstances.

The submission made for the respondent was in a sense straightforward. It was said that the sheriff here had not fallen into error and in particular had avoided the mistake of assuming that the making of a property transfer order leads to an unequal division: that was a mistake made by Sheriff Bell in Quinn but the sheriff here had correctly recognised that a property transfer order (even of a jointly owned house whose value had risen since separation of the parties) was or could be a route to an equal division and had proceeded down that route as he was entitled to do. In his third finding-in-fact-and-law the sheriff's use of the word "necessary" meant simply that a property transfer order was required here in order to achieve an equal sharing, not that a property transfer order was the one and only means of achieving that object. The property transfer order made by the sheriff was justified by section 8(2) in both its branches, as indicated by the sheriff's note which could have perfectly well come to an end at the foot of page 9. Criticisms therefore of anything said by the sheriff beyond that point were of no significance in the appeal. It was accepted that the situation here was appropriate for an equal division of the net value of the matrimonial property in order to achieve a fair sharing: there were here no special circumstances to justify an unequal division, no argument to that effect had been advanced to the sheriff at the proof and in any event neither party had any pleadings whereon to base such a suggestion. It was explained that at the proof the pursuer's solicitor had instructions to depart from her craves for a pension sharing order and a capital payment and to seek from the court only property transfer orders in relation to the house and the relative endowment policies. The only application therefore before the court in terms of section 8(1) at the proof was the pursuer's application for these property transfer orders and the only thing the sheriff had to decide, indeed the only option open to him in the circumstances, was to decide whether to grant or refuse those property transfer orders on which the pursuer now perilled her case. In terms of section 8(2)(a) the pursuer's solicitor had at the proof invoked the principle set out in section 9(1)(a) solely. In deciding whether to grant or refuse the property transfer orders sought by the pursuer the sheriff had to look at the net value of the matrimonial property as at the relevant date only, which the sheriff had correctly done here, that being the requirement of the law in its current state as laid down by the 1985 Act as interpreted in the Court of Session and the House of Lords in the case of Wallis. One consequence of this was that the admittedly agreed fact that the house had been increasing in value at the rate of fifteen per cent per annum was nevertheless irrelevant to the issue to be decided by the sheriff. For a lower court there was no way round the dicta in the House of Lords in Wallis without legislation to amend the terms of the statute, which had not occurred. There had over the years been many clever attempts to get round the effect of Wallis in various cases, of which Sheriff Bell's decision in Quinn was one example; the present case, in which the appellant was trying to have the court look at valuations at different dates, was a further such attempt but one which could not succeed in the present state of the law.

In my opinion the essential flaw in the position adopted by the defender and appellant throughout this case including the present appeal consists in a failure to recognise that the effect of the Act of 1985 as construed in the case of Wallis is to deem a property transfer order based on property values taken at the relevant date to be an ingredient in a fair sharing of the net value of the matrimonial property without need for further adjustment between the parties to take account of any change in those values since that date. Another way of putting the matter is to say that the Act as interpreted in Wallis deems an equal division (in the absence of any special circumstances) of the net value of the matrimonial property as valued at the relevant date to be a fair sharing for the purposes of the first principle enunciated in section 9. If the financial provision ordered by the court includes a property transfer order based upon those property values then the result, assuming all other matters to be correctly attended to, is deemed by the Act to be a fair sharing. There is in other words no room as the law currently stands for any idea that a change in property values since the relevant date can result in an unequal division or unfair sharing unless specially rectified by the court. There is therefore no need to seek a special circumstance in order to justify a property transfer order as if it will lead to an unequal division where there has been a change in value since the relevant date: it does not and cannot lead to an unequal division or unfair sharing in the eye of the present law. Lord President Hope in the Court of Session said nothing to indicate an acceptance of the view that there might be some inequity in this position despite seeing some initial attraction in that view of the sheriff in that case: it was in his opinion quite straightforwardly the position ordained by the statute. In this respect the paragraph of Lord President Hope's opinion at page 679 immediately succeeding the paragraph quoted by the sheriff in his note in the present case is instructive. Lords Keith and Jauncey in the House of Lords recognised the possibility that inequity might sometimes appear to result but declared the law as enacted to be clear and suggested that amending legislation would be required in order to deal with any such apparent inequity. No such legislative change has occurred, neither at the hand of the Westminster Parliament nor more recently at the hand of the Scottish Parliament, and I am not aware that there has since Wallis in 1993 been any consultation in Scotland with a view to introducing any amending legislation. Their Lordships in the House of Lords moreover cast doubt on any suggestion that a change in value since the relevant date might itself constitute a "special circumstance" for the purposes of section 10(1) such as might justify an unequal division in order to take account of such a change in value. They thus impliedly gave the meaning "unusual" to the word "special" rather than the meaning "particular to the case". The profession in Scotland appears since to have accepted that interpretation of the phrase "special circumstances" and certainly no suggestion was made to me in the present case that it should be interpreted differently and that the change in value should itself be taken to constitute such a special circumstance (a proposition for which there is in any event no foundation in the pleadings here). In the result therefore the present case is governed by the clear terms of Wallis and the attempt to circumvent the effect of that high-level decision (which I regard as a correct characterisation of this appeal) is in my opinion unavailing.

It follows that I do not agree with the approach of Sheriff Bell expressed by him in the case of Quinn v Quinn 2003 SLT (Sh.Ct.) 5 to which I was referred and which presumably did not become subject of appeal. There can be all sorts of reasons for a decision at first instance not being appealed and I observe that the sheriff postponed the effect of his decision by some fifteen months and that there seemed to him to be some prospect of parties agreeing matters even yet. The wife pursuer wished the jointly-owned matrimonial home to be sold while the husband defender sought an order for transfer to him of her half-share in exchange for a sum calculated by reference to the value of the house at the relevant date although its value had since then increased substantially. The sheriff took the view which was urged upon me for the appellant, namely that where the result of a property transfer order will be an inequality of division the first question ought to be whether there exist special circumstances to justify such an order. Finding no such special circumstance (or perhaps no sufficient special circumstance?) he refrained from making a property transfer order and instead ordered a sale of the matrimonial home as being the only means available of achieving an equal division of the matrimonial property. The sheriff was referred to Wallis, with which he was obviously familiar, and suggested that matters had in that case been approached the wrong way round. He also expostulated at the effect of Wallis in rendering a change in value subsequent to the relevant date incapable of being a special circumstance. No doubt the sheriff was here giving vent to a commonly held view about the inequities which are seen to flow from the Wallis interpretation of the Act and which underlie calls which have been made for amending legislation but his approach flies in the face of the Wallis decision or at least in the face of my understanding of its effect which I have endeavoured to set out above. The words in Wallis of Lord President Hope, quoted by Lord Keith in his speech in the House of Lords, really could not be clearer where he says at the end of the eighth paragraph of his opinion: "Accordingly any subsequent changes in value must be left out of account when calculating the value of the matrimonial property and the way in which it is to be divided between the parties.". Against this background there was in my view no proper reason for the sheriff to refrain from granting the transfer property order sought by the defender in the case.

I think it noteworthy that Lord President Hope in that sentence included the final phrase "and the way in which it is to be divided between the parties", the import of which is to underline the idea that various kinds of financial provision may be made to achieve the object of sharing the net value of the matrimonial property fairly, among which a choice exists, but whichever method is chosen the only legitimate object is to achieve a fair division of the net value of the matrimonial property at the relevant date and no one method is to be preferred over any other on account of anything to do with any subsequent change in value. The choice to be made among the available methods in any given case is essentially a matter for the exercise by the sheriff of a discretion or (perhaps more accurately) of a judgement on the facts presented to or found by him and with that exercise of discretionary judgement an appellate court cannot in my opinion readily interfere. It is I think necessary for the sheriff who has taken the proof to have some reason(s) for preferring one of the available methods and to state it or them but a change in value of the matrimonial property since the relevant date cannot on the present law be such a reason. Provided there is a sufficient reason stated it is not in my view open to the appellate court simply to substitute its own view for that of the sheriff as to which of the available methods is the more or most appropriate: only if no sufficient reason were given or there were some legal misdirection or some irrelevant factor relied upon would it become open to the appellate court to make its own assessment and its own choice of appropriate financial provision.

The sheriff in the present case gave such reasons. He did so at the tenth page of his note where he alluded to certain factors which he considered supportive of the appropriateness of making the property transfer orders sought by the pursuer. It was in my view necessary for him to do so and I do not accept a submission made to me for the respondent to the effect that his judgement could perfectly well have come to an end at the foot of his ninth page. I do not however find myself fully in agreement with the manner in which the sheriff has expressed himself on some of these reasons. He speaks in the first paragraph at page 10 of his note of "finality of division" which he considers to be contemplated by the legislative purpose of the 1985 Act and seems to regard it as incumbent on the court to seek to devise a scheme of financial provision which will lead to finality. I am not aware that the Act itself contains any express provision to this effect or even any provisions from which such a purpose is necessarily to be inferred and I agree with a submission made for the appellant to this effect. On the other hand it has I think always been assumed that a "clean-break principle" underlay the genesis of the financial provision elements in the 1985 Act, whereof perhaps the clearest manifestation in the statute is the considerably more restricted scope of the periodical allowance by comparison with the "bread ticket for life" character which it used to have prior to the Act. It may perhaps have been this idea of the "clean break" which the sheriff had in mind but, however that may be, I do not see the risk of further dispute between the parties on a sale of the matrimonial home as a sufficient reason for refraining from ordering (if it were otherwise appropriate) a sale of the house followed by an equal distribution of the free proceeds and I do not therefore regard this as a reason supportive of granting the pursuer her property transfer orders. In his second paragraph at page 10 the sheriff observed that the defender's pleadings entirely lack any craves relative to the scheme of division proposed on his behalf at the proof. That was a pertinent observation on his part in the then state of the pleadings and in my view the absence of an appropriate crave (see further below) constituted a bar to an order being made for a sale of the matrimonial home. For the purposes of the appeal however this difficulty has been removed by the amendment allowed without opposition at the outset of the hearing (albeit that amendment may have some effect on expenses at the end of the day). In his third paragraph at page 10 the sheriff makes reference to averments on record (which he quotes from article 3 of the condescendence) concerning the needs of the child of the marriage and the need or wish of the pursuer to return to their former home, they having since the separation been compelled to share a room in residence at the pursuer's sister's house. It is I think unfortunate that the sheriff chose to make reference to mere averments made about these matters: his doing so in the circumstances of the proof which took place only on the basis of a joint minute (otherwise a procedural course to be applauded) opened up the way to a submission for the appellant (which I have recorded above) to the effect that the sheriff had based his decision in the pursuer's favour on material which was neither agreed nor proved. In other words the sheriff had taken these averments pro veritate which in the circumstances he was not entitled to do. Despite this I consider the sheriff to have been well-founded in viewing the needs of the child of the marriage as important to his decision to grant the property transfer orders sought by the pursuer. It is from the pleadings in the case as a whole quite clearly beyond dispute that the pursuer and the child of the marriage have left their former home, that they are residing elsewhere and that the child's fifteenth birthday occurred on 15 December 2003. There is no hint in the case that they are now living in palatial accommodation of their own elsewhere which they can afford without difficulty and it is plainly a reasonable inference that the child is at a critical stage in her educational development. In these circumstances the need for the child and her mother to return as soon as possible to their former home appears to me in the wider context of the whole action to be not at all a "flimsy" justification for transferring the title of the matrimonial home to the pursuer (as was apparently submitted to the sheriff) but a powerful and compelling reason for granting the property transfer orders craved on the pursuer's behalf. There was therefore at least one sufficient reason recognised by the sheriff in his deliberations and remaining extant even now for choosing the course urged for the pursuer from the available methods of making appropriate financial provision in the case.

I am willing to add in the context of a discussion about choosing among available methods of making financial provision that I was not favourably impressed by the appellant's submission that a capital payment of a fixed sum should be taken to be the "normal and orthodox approach" of the court to the making of financial provision, at least not in 2003 or 2004. Those words were used by Lord Caplan in the case of Macdonald 1992 SCLR 132 in a judgement issued in July 1992 in which he decided to order a capital payment in preference to a sale of the matrimonial home with an unequal division of the net proceeds of sale. The Act of 1985 had then been in force for seven years. As time goes on however and the variety of orders for financial provision available to the court is increased by amendment from time to time of the Act it seems to me less and less correct to think of any one type of order for financial provision as being any more or less normal or orthodox than any of the others available. Until 1985 awards of periodical allowance or capital sum were the only types of order for financial provision commonly available and their currency had lasted for over twenty years. Against that background it is perhaps not too surprising that Lord Caplan in 1992 should have viewed a capital payment as more "orthodox" than a sale of the matrimonial property with an unequal division of the proceeds but twelve years further on I think such a characterisation to be of doubtful validity or even outworn.

The appeal also raised an interesting procedural question concerning the powers of the court under section 8 of the 1985 Act to make orders for financial provision. The position adopted on behalf of the respondent, as I have attempted to summarise it above, was that the sheriff had been confined at the proof to making a single decision, namely whether to grant or refuse the pursuer's craves for property transfer orders (her second and fourth craves on record). This was said to be the consequence of a stratagem whereby the pursuer by insisting only in those craves through the mouthpiece of her solicitor in his address to the sheriff at the proof and departing from her third and sixth craves for a capital payment or a pension sharing order had removed from the sheriff the power to make any order for financial provision in the case other than the two property transfer orders sought by the second and fourth craves. By section 8(2) the court was empowered to make orders only where an application had been made under section 8(1) and by the close of proof when the sheriff took the case to avizandum the only applications before the court were those for property transfer orders embodied in the pursuer's second and fourth craves. There was no basis on which the court could make orders to implement the scheme of division suggested on the defender's behalf because no application lay before the sheriff for any order for sale of the matrimonial home nor for any capital payment nor for any pension sharing order. The same position impliedly existed now at appeal before the sheriff principal with only one modification, namely that there was now by reason of the amendment allowed at the outset of the appeal hearing an application before the court for an order for sale of the matrimonial home but still no application for a capital payment or a pension sharing order. With this submission I have to say I do not agree. While I accept the idea that there has to be an application (in proper form: see below) before the court in order for an order for financial provision of the type applied for to be granted by the court, I do not accept the proposition advanced for the respondent that a departure from the pursuer's third and sixth craves when the court was addressed at proof had the effect of disabling the court from making orders in accordance with those craves so long as they remained on record if the sheriff saw fit to make such orders after he had been fully addressed by both parties. In order to remove the possibility of the sheriff making orders of the type envisaged in the pursuer's third and sixth craves her agent would have required to delete those craves from the pleadings on record by amendment and whether the sheriff would have granted him leave so to amend in circumstances where the defender's agent would have indicated to the court that orders of the type envisaged by those craves were still sought on her client's behalf is to my mind doubtful at best. For an application under section 8(1) to be in proper form according to accepted practice and procedure in a Scottish civil court it is I think necessary for it to take the form of a crave written into the pleadings and not sufficient for it to be made merely orally in course of an address to the court at the close of a proof: for this reason it appears to me that the sheriff was correct to remark in his judgement on the absence from the defender's pleadings of appropriate craves and the appellant's agent correct to grasp the need for her to insert by amendment at the outset of the appeal hearing a crave seeking an order for sale of the matrimonial home and distribution thereafter of the free proceeds of that sale. These remarks of mine are intended only to bear upon the particular issues raised by the manner in which this case has been conducted by the parties. I appreciate that they do not address some wider issues which it appears can arise when one attempts to dovetail the provisions of section 8 of the 1985 Act as amended with or into normally accepted practice and procedure in a Scottish civil court: for instance the statutory provisions now allow either party to apply for a variety of orders not all of which will necessarily always be conceived in favour of the applicant party thus giving rise to questions as to who is entitled to place what craves before the court or to withdraw what craves once tabled. On these wider issues I did not hear full argument and did not consider it necessary to re quire full argument for the purposes of the present appeal. I am not aware that these matters have been addressed in depth in any reported judgement at a high level and such procedural issues will of course most often be dealt with by the good sense of sheriffs and agents appearing before them without need for prolonged debate or expensive appeals.

Despite the sheriff's observation that the defender's pleadings lacked appropriate craves whereon to base the defender's proposed scheme of division I do not have the impression from a reading of the sheriff's judgement as a whole that he felt constrained thereby or by the position adopted by the pursuer's agent in seeking only property transfer orders into rejecting the defender's proposals for purely procedural reasons. Rather it appears to me that the sheriff gave the submissions made for the defender fair consideration on their merits along with those made for the pursuer and came in the end to prefer the latter.

I should add that I think it worthy of note that, as observed by the sheriff in the third paragraph at the tenth page of his note, the pursuer in fact claims by her craves for property transfer orders rather less than one half of the net value of the matrimonial property at the relevant date. Although both agents appear to have addressed the sheriff and each addressed me on the footing of a common acceptance that this was a case in which an equal division was appropriate of the matrimonial property, the sheriff's decision granting the pursuer's second and fourth craves actually gave her by my calculations some £31,882.00 or 431/2% of the net value of that matrimonial property as at the relevant date: see the sheriff's first finding-in-fact-and-law where he found the total value for division to have been £73,260.74. Apparently the pursuer and respondent was and is content with this state of affairs which means she will receive some £4,750 less of the value than she would on a strictly 50/50 division. That perhaps goes some way to offset or provide some redress for the fact, which was drawn to my attention although no figures were given, that the defender and appellant alone has been funding the heritable loan over the jointly-owned house since the date of final separation.

As earlier mentioned the Scottish Lords in their speeches in the House of Lords in the Wallis case suggested that it was for consideration whether there may be a need for amending legislation. I am not aware that that suggestion has been taken up at all during the ensuing decade. In my opinion it is high time that proper consideration be given to their suggestion: while the present state of the law may be satisfactory because it is clear it is at the same time unsatisfactory on account of the perceived inequities to which it appears sometimes to give rise. The present case has some of that appearance although its result is in the present state of the law plain.

For completeness I should add that I was given a passing reference to two decisions referred to by the sheriff, namely McHugh v McHugh (an Outer House decision in the Court of Session dated 15 December 2000) and Livie v Livie (a decision of a sheriff at Dundee dated 6 July 1999). These are single judge decisions in which the Wallis decision was applied (in the Court of Session case without contrary argument) but I do not think they add anything to what I have said above.

It was agreed before me that the expenses of the appeal procedure should follow success in it and since the appeal has failed they will be awarded against the defender/ appellant in favour of the pursuer/respondent.

When I heard this appeal I had at avizandum an appeal in another Paisley case decided by another sheriff (Kennedy v Kennedy: case no F7/02) which raised some of the same points concerning the application of the Wallis decision and, having decided the two cases in the same manner, I have issued the judgement in that case simultaneously with this judgement on the same date.

BAK