Lightbody or Jacques v. Jacques (Scotland)

The House of Lords held that under the Family Law (Scotland) Act 1985 the starting point for division of the net value of matrimonial property under section 9(1)(a) and section 10(1) is equal sharing. The subsection 10(6) illustrations are permissive ('may include') and do not automatically require an unequal division. A finding that one or more matters fall within the illustration in section 10(6) does not by itself oblige the court to order division other than equally; the special circumstances must in fact justify a departure from equality. The court emphasised that assessment of whether special circumstances justify unequal sharing is a matter of judgment for the court of first instance and that appellate interference is only warranted in cases of clear error.

Background and facts: The principal asset was the matrimonial home at Millbank acquired from the proceeds of sale of a pre-marital house in Surbiton. The Surbiton title had been in the husband’s sole name; by agreement the Millbank title was taken in both names. The house had been renovated funded partly from the Surbiton proceeds and partly by a bank loan; the husband operated a bed and breakfast business from the property. The relevant date was when the wife left (10 September 1990) and the Millbank value then was £55,000 less outstanding loan.

Procedural history: The sheriff refused the wife’s application for a declarator of equal ownership and sale. Both parties appealed to the Court of Session, First Division (reported 1995 S.L.T. 963) which allowed the wife’s appeal, granted a declarator of equal ownership and ordered sale, remitting to the sheriff. The husband appealed to the House of Lords.

Relief sought: The wife sought a declarator of equal ownership, an order for sale and ancillary orders. The husband sought financial provision on the basis that special circumstances justified an unequal division of the net matrimonial property.

Issues framed: (i) whether the existence of circumstances falling within section 10(6) of the Family Law (Scotland) Act 1985 necessarily requires a division other than equal under section 10(1); (ii) whether the sheriff and the First Division erred in law or fact in the orders made; and (iii) whether the facts of the case (source of funds, contributions to purchase and renovation, and business use) justified an unequal division.

Court’s reasoning and disposition: The House construed section 10(1) as establishing equality as the ordinary outcome and held that subsection (6) supplies non‑exhaustive illustrations and is permissive. The presence of an illustrated factor is not determinative; the court must decide whether special circumstances justify departing from equality. The statute preserves an evaluative discretion best exercised by the first instance judge; appellate intervention is limited to clear errors. Applying that approach to the facts, the House found no basis to disturb the First Division’s order and dismissed the appeal. The Lords noted the Act’s innovations but emphasised continuing judicial discretion and the importance of leaving detailed fact appraisal to the trial court.

Appeal dismissed. The House held that section 10(1) of the Family Law (Scotland) Act 1985 presumes equal sharing of the net value of matrimonial property; the examples in section 10(6) are illustrative and do not automatically mandate unequal division. Whether special circumstances justify departure from equality is a discretionary factual judgment for the court of first instance and the First Division’s order was not shown to be plainly wrong.

Sheriff refused the wife's application; both parties appealed to the Court of Session, First Division (reported 1995 S.L.T. 963) which allowed the wife's appeal and ordered sale; husband appealed to the House of Lords ([1996] UKHL 2).