A recent Sheriff Appeal Court case highlights the challenges of working out what is and isn’t matrimonial property when you live with your partner for a long time before getting married.
The background
Mr and Mrs Grant had been in a relationship since 1994 and lived together from 1996. Before their relationship had become established, and long before they married in 2003, Mr Grant bought a plot of land to build a house on. They first lived together in a flat but soon bought a mobile home which they put on the plot and they lived there while a house was built. They were both fully involved in the building project, employing architects, applying for planning permission and choosing the specifications for the house. The home was finished in 1997 and they moved in and lived there, along with their children until they separated in 2008.
After deciding to separate, they couldn’t agree on how the house should be dealt with and the dispute about it went on for many years and still isn’t resolved.
Mr Grant said that his wife shouldn’t be entitled to a share of the value of the house because it wasn’t part of the matrimonial property.
A couple’s matrimonial property is the pot of assets which is shared between them on divorce. It includes everything acquired by either of them during the marriage, but not any asset owned pre marriage (or anything inherited or given to them during the marriage). The only exception to this is any house which was acquired before the date of marriage for use by them as a family home.
So in this case there were three questions to be answered:
- what was the property in question?
- when was it acquired?
- was it acquired for use as a family home?
What was the property in question and was the house part of the matrimonial property?
The property was clearly the family home. Mr Grant’s position was that the property was one asset – the land with the house on it. He said that as he had owned the building plot for years before they were married and when the family home was built on it, the house had become part of the land. That’s right in terms of property law – when a house is built on land it accedes to the land.
Unsurprisingly, Mrs Grant disagreed. She said that whilst her husband owned the house and land in terms of property law, in terms of family law the house was matrimonial property.
The Sheriff said that actually there were two assets – (1) the land and (2) the constituent parts used to build the house or “the building materials that came to represent the physical embodiment of the house”. He decided that the land wasn’t part of the matrimonial property but that the building materials were. This was an inventive solution, but does seem pretty artificial and raises the question of how you would work out what the building materials were worth, given that you couldn’t really dismantle the house and sell the parts.
Mr and Mrs Grant both appealed the Sheriff’s decision arguing that either the house and land were matrimonial property or they weren’t. Obviously they disagreed about whether they were matrimonial property or not – she said they were and he said they weren’t.
The Sheriff Appeal Court agreed with them, stating that the property in question was one single item, owned by Mr Grant, comprising both the house and the land it was built on, which seems much more logical than the Sheriff’s approach.
When was the property acquired?
So the second question then had to be addressed – when was the property acquired by Mr Grant? The Appeal Sheriffs said it must have been acquired by him when the house was completed, not as he had argued, when he bought the plot. Remember that this was before long before he got married and before his relationship with his wife was properly established. This was important because to answer the third and final question the court has to look at what his intention was when he acquired the property.
Was the property acquired for use as a family home?
That then led on to the final question – was the property acquired for use as a family home? Typically, this question is fairly simple to answer. Often, if a husband buys a house in his name just before he is married it is easy to prove that his intention was that it should be the family home – he might be engaged or he might have chosen it with his future wife and lived there with her before their wedding.
In this case it wasn’t quite so straightforward and this final question hasn’t yet been answered. The Appeal Sheriffs sent the case back to the Sheriff to hear evidence on the point about what Mr Grant’s intention was for the house when it was completed.
We don’t know the ultimate outcome yet. It certainly seems possible, or even likely, that Mrs Grant will be able to prove that their intention was the house was to be their family home, which will mean that it is matrimonial property and she will be entitled to a share of its value.
This case may be unusual but it does illustrate the sort of problem which can arise when a couple lives together for a long time before marrying. The more complex your financial affairs are before you marry, the more difficult it can be to sort them out if the worst happens and you split up.
