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You Win Some, You Lose Some

January 24, 2022 Family Law

The Jones Whyte Family Department recently acted for the pursuer in an Action for Divorce which was heard in the Outer House of the Court of Session by Lady Wise in the summer of 2021.

On the face of it, it seems like a straightforward divorce settlement (if there is such a thing), where both contacts with the couple’s two children, and also financial provision was in dispute.

The couple had been married since Spring of 2015 and the date of separation was Autumn of 2018.

Where the case takes an interesting and unusual turn is during the examination of matrimonial assets to be divided between the parties, and a lottery win of raises its head.

This win was approximately 6 months after the date of marriage, so in accordance with s10 of the Family Law (Scotland) Act the property was indeed “”.

This would seem like a simple case of the assets forming part of the overall “pot” of matrimonial assets to be considered for division, however, this was not the position the defender took.

There were in fact three defenders in this matter. Firstly the husband, but latterly his parents were joined to the action as parties.

It was claimed by the husband that the funds he held from the lottery win were in fact not his, and he was holding them as an agent for his parents.

The funds used to pay for the winning ticket had come from the till of the husband’s parents shop, and it was, therefore, claimed that the winnings were theirs and not belonging to the husband at all, despite the fact that he was physically in possession of them.

Jones Whyte, who represented the Pursuer in the matter brought forth evidence including the official rules of Camelot, the organisation governing the Lottery, which stated that

Rule 4 in particular provides that , and in terms of rule 6, . This position was cemented by the fact that rule 7 requires a claim form to be completed by the claimant stating that they are lawfully entitled to claim the prize.

The scrutinising of these rules may seem like semantics, but as a result of the unlikely stance of the defender that the funds were in fact not his this was an important first step to establish. It was very much for the defender to prove that the assumption of Section 10 of the Family Law (Scotland) Act was applicable in this circumstance.

Lady Wise was unmoved by the arguments of the defenders finding their responses rehearsed and stated that there was

On this basis, the pursuer (represented by Jones Whyte) was seeking to have set aside a transfer of funds totalling £5,995,000 from the defender (the husband) to his parents in 2019, which he continued to access using a debit card he had been provided for the account. This transfer happened to occur within a week of the husband being informed that litigation was to commence.

He then proceeded to divest himself of the remainder of his assets all the way down to transferring ownership of his car, and then in the words of Lady Wise “

After summing up all the evidence presented to her, Lady Wise did indeed set aside the transfer above and found the defender liable to the pursuer for the sum of four million, eight hundred thousand, six hundred and seventy-six pounds (£4,800,676).

Lady Wise’ feelings on the actions of the three defending parties are further cemented when she finds that the first defendant is to be held liable for expenses on an agent/client, client paying basis, (the most severe form of recovery available), and all three defending parties to be jointly liable for a further grant of expenses to the Pursuer.

This should serve as a stark warning to any party attempting to mislead the Court and divest themselves of assets intentionally, with the aim of defeating the ends of justice.

If you are looking to seek legal advice for a family law matter contact the Jones Whyte Family Department on 0141 736 0011 or via the online.

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