Sheriff Appeal Court finds separating wife failed to invoke occupancy defence in dispute over sale of family home

About this case:

• Citation:
  [2026] SAC (Civ) 29
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Principal Aisha Anwar

Appellant Caroline Curran was the defender in the action raised by her husband John Curran, who sought declarator that he was entitled to insist upon division and sale with the net sale proceeds divided equally between the parties. At the time the action was raised, neither party had raised divorce proceedings, however during the appeal the court was advised that divorce proceedings had been raised following the debate before the sheriff.

The appeal was heard by Sheriff Principal Aisha Anwar KC, with M Thompson, solicitor, appearing for the appellant and F MacShane, advocate, for the respondent.

Protected right of occupancy

In June 1994, the parties purchased the matrimonial home in Lenzie, in which each party held a one-half pro indiviso share. They separated in January 2012, following which the respondent left the property but continued to pay his one-half share of the mortgage. The respondent warranted an action of division and sale in September 2024, averring that the appellant had failed to engage with him in relation to the sale of the property, and he required the release of the equity in the property due to his financial situation.
The appellant averred that, while she was agreeable to the sale of the property, she did not agree to the net free proceeds being divided equally, and that the respondent ought to seek remedies under the Family Law (Scotland) Act 1985 by raising divorce proceedings. Her note of basis of preliminary plea referred to section 19 of the 1981 Act, which the respondent challenged for lack of relevancy and specification.

Following debate, the sheriff noted that the appellant had made no reference to section 19 in her averments, nor made any averments setting out why it was necessary for her to remain in the property. While she alleged that the respondent had an extra-marital affair, this was irrelevant to establishing a section 19 defence. There being no real prospect that her defence would succeed, he considered it appropriate to grant summary decree.

For the appellant it was submitted that the sheriff had erred in categorising section 19 as an exception to the rule at common law conferring an absolute right on a co-owner to insist on division and sale. It was not a defence, but a protected right of occupancy. Accordingly, the onus of proof was on the respondent to aver why section 19 did not apply in this case.

Counsel for the respondent submitted that where a statutory provision provided a defence, the party relying on it bore the evidential burden. The sheriff was correct to rely on the unreported case of B v B (2010) in support of this proposition.

Does not aver why

In her decision, Sheriff Principal Anwar said of the effect of the 1981 Act on the common law position: “Section 19 of the 1981 Act confers upon the court a broad discretion to refuse to grant decree in an action of division and sale or to postpone the granting of decree for such period as it may consider reasonable in the circumstances, or to grant decree subject to such conditions as it may prescribe, after having regard to all the circumstances of the case, including the matters specified in subsections (a) to (d) of section 3(3) and having regard to whether the spouse bringing the action has offered to make available to the other spouse, any suitable alternative accommodation.”

She added: “Section 19 provides, in effect, a statutory defence to an action of division and sale. As the authorities to which I have referred have clearly established, is it for the defender to invoke the protection afforded by section 19 and ‘put it in issue’. I agree with the submissions advanced by counsel for the respondent. It is a well-established legal principle that where a statutory provision provides a defence, the party relying on it bears a persuasive and evidential burden to bring themselves within the scope of that provision.”

Considering whether the appellant had done enough to invoke the defence, the Sheriff Principal said: “The sheriff correctly observed that there were no averments addressing the defender’s need to continue to occupy the matrimonial home. She had sought to rely upon 16 the respondent’s alleged extra-marital affair, however if this averment was intended to be directed towards the appellant’s “conduct” it was irrelevant for the purposes of section 19; ‘conduct’ in section 3(3)(a) of the 1981 Act was ‘not directed towards the general conduct of the spouses towards each other during the course of the marriage’ but was directed to the conduct of the spouses in relation to the matter of occupancy of the matrimonial home.”

She concluded: “The appellant’s brief pleadings can be described, at best, as confused. She expressly consents to the sale of the property. Yet she invites the court to refuse decree. She does not aver why. She does not seek postponement of decree nor invite the court to grant decree subject to conditions, such as by consigning the funds with a solicitor pending the outcome of divorce proceedings. Put shortly, she agrees the house should be sold, but wishes to remain in occupancy, without explaining the circumstances which would entitle her to do so.”

Sheriff Principal Anwar therefore refused the appeal and adhered to the interlocutor of the sheriff.