Lightbody or Jacques (A.P.) v Jacques (A.P.) (Scotland)

Under the Family Law (Scotland) Act 1985, equal sharing of the net value of matrimonial property is the ordinary fair result. The identification of a circumstance described in section 10(6) does not automatically require unequal sharing.

The court must decide whether circumstances special to the case justify departing from equality. If they do, it must then determine the unequal proportions which those circumstances justify. The statutory principles constrain the court’s discretion, but their application to the facts remains principally a matter for the court of first instance. An appellate court should not reconsider matters of detail without an error sufficiently serious to warrant interference.

The parties disputed the financial provision to be made on their divorce. Their principal matrimonial asset was a jointly owned home bought largely with the proceeds of a premarital house held in the husband’s sole name. The husband also used the matrimonial home for a bed and breakfast business.

The sheriff made no financial provision order because the parties could realise the jointly owned property under the ordinary law of property. The First Division, 1995 S.L.T. 963, refused the husband’s appeal, allowed the wife’s appeal, declared that the home was owned in equal shares, ordered its sale and remitted the case to the sheriff.

The central issue before the House was whether the existence of circumstances within section 10(6) of the Family Law (Scotland) Act 1985 necessarily required the matrimonial property to be divided unequally.

1. Appeal dismissed unanimously. Lord Clyde delivered the leading speech. Lord Mustill, Lord Lloyd of Berwick and Lord Steyn agreed with his reasons. Lord Jauncey of Tullichettle also agreed and added concurring reasons.

2. Per Lord Clyde, section 10(1) of the Family Law (Scotland) Act 1985 directs how fairness under section 9(1)(a) is to be understood. Equal sharing is fair in the ordinary course. The words “special circumstances” have no technical meaning and refer to circumstances special to the particular case.

3. Per Lord Clyde, section 10(6) supplies non-exhaustive illustrations. Its use of “may include” means that an illustrated circumstance does not necessarily require unequal sharing. The court must first decide whether circumstances special to the case justify departure from equality. Only then must it determine the unequal proportions justified by those circumstances.

4. Per Lord Jauncey, the statutory scheme therefore creates a presumption in favour of equality. The occurrence of an event described in section 10(6) does not automatically constitute a special circumstance or compel an unequal division. The subsection guides the first-instance court but does not fetter its judgment in applying section 9(1)(a).

5. Per Lord Clyde, all the circumstances could properly be considered, including the parties’ agreement to take title jointly. The husband’s financial contribution and business use of the home did not compel unequal sharing. The First Division was entitled to regard the business-use point as having little importance.

6. Per Lord Clyde and Lord Jauncey, the 1985 Act constrained the former discretion through its statutory principles, but their detailed application remained principally for the judge who heard the evidence. The House approved the approach in Little v Little 1990 S.L.T. 785. No error sufficiently serious to justify appellate interference had been established.

7. The First Division’s declarator of equal ownership, order for sale and remittal to the sheriff were allowed to stand.

1. House of Lords: Dismissed the husband’s appeal unanimously and allowed the First Division’s order to stand.
2. First Division of the Court of Session: In 1995 S.L.T. 963, refused the husband’s appeal, allowed the wife’s appeal, declared that the matrimonial home was owned in equal shares, ordered its sale and remitted the case to the sheriff.
3. Sheriff: Refused to make an order for financial provision because the jointly owning parties could realise the matrimonial home under the ordinary law of property.