The court can grant an order under s 14 of the Family Law (Scotland) Act 1985 in an action for divorce, although the parties have entered into a minute of agreement; and an order is competent even in the absence of any other orders for financial provision under s 8 of the Act, a sheriff has held.
Sheriff Aisha Anwar made the ruling at Glasgow Sheriff Court in favour of Alan Peberdy, granting divorce from his wife Meghane Peberdy, an incidental order suspending the defender’s occupancy rights in the parties' house and requiring her to immediately vacate the property, failing which warrant to sheriff officers to immediately enter the property and summarily eject the defender; and warrant to the sheriff clerk to execute a disposition in relation to the sale of the property. Incidental orders had already been granted for sale of the house, appointment of selling agents and access for viewing by prospective purchasers.
The parties were married in 2006 and separated in 2012. The defender continued to reside in the house, which was jointly owned. In terms of a minute of agreement completed in December 2015, the property would be placed on the mortgage to rent scheme; if it had not been accepted for the scheme by 15 March 2016, it would be marketed for sale, both parties undertaking to cooperate in the sale; no reasonable offer would be refused; and the net proceeds would be equally divided.
The property was not accepted for the mortgage to rent scheme by the stated date. The secured lender held decree for repossession, which had not been enforced. The defender was paying off mortgage arrears with assistance from her father. She had been ordained in 2017 to implement her obligations under the agreement. She continued not to cooperate with arrangements for sale. When the property was eventually marketed and an offer accepted by a solicitor instructed by the court to act in the sale, the defender refused to sign the disposition or vacate the property. The sheriff did not accept her evidence that she had not been given an opportunity to buy the pursuer's share.
In holding that the minute of agreement did not oust the jurisdiction of the court to grant the orders sought, Sheriff Anwar stated: "To some extent, they have agreed the mechanics of implementing their agreement... However, they have not agreed how and when the defender’s occupation of the property will end. They have not specified the need for vacant possession should she fail to cooperate with and facilitate a sale. Accordingly, neither party has, in my judgment, renounced a right to seek incidental orders in terms of s 14 of the 1985 Act in that regard. I am satisfied therefore that the parties have not disqualified the court’s intervention to the extent of granting incidental orders which give effect to the terms of the agreement, provided the requirements of s 8(2) are met."
It was also competent for the court to grant an incidental order in the absence of a principal order. This appeared from the wording of s 8, and although certain judges had made statements to the contrary, the Inner House in Jacques v Jacques (1995) had held that it would have been competent for the sheriff to have granted the incidental orders sought by the pursuer, a decision which was binding on the court. There was no reason why the pursuer should be required to raise separate proceedings for division and sale.
It was stated in the agreement that the parties had accepted its terms as fair and reasonable, and the court "could be satisfied, in terms of s 8(2), that an incidental order which seeks to implement the terms of that agreement is justified by the principles set out in s 9 and is reasonable having regard to the parties’ resources". In any event the court could be so satisfied on the evidence.
The sheriff concluded: "The defender made a number of impassioned pleas to be allowed to continue to occupy the property and to be permitted to purchase it. She has already agreed to sell the property and forgo her claim to a property transfer order and in any event, regrettably, it is clear from the evidence before me that she is not in a position to secure funding for the purchase of the pursuer’s title to the property.
"Accordingly, I am satisfied that the incidental orders sought by the pursuer are competent, justified by the principles set out in s 9 of the 1985 Act, reasonable having regard to the parties' resources and ought to be granted."