In Black v White, Hamilton Sheriff Court refused a father’s attempt to move from equal shared care to an unequal split, made a final shared residence order continuing the equal arrangement, and gave the mother credit for the reduction in the mortgage that her payments achieved after separation.
Background
The parties married on 31st December 2011 and separated on 18th July 2020. They have two daughters, aged 12 and 10 at the date of the judgment. Equal shared care had operated broadly since September 2021 and was formalised by an interlocutor on 30th November 2023. The mother stayed in the jointly owned matrimonial home with the children and paid the whole mortgage until the home was sold in March 2025. The net free proceeds of sale were £51,956.09. Most financial matters were agreed, so the proof dealt mainly with the children and with the credit due to the mother for the mortgage payments.
The legal framework
On the children, the sheriff applied section 11(7) of the Children (Scotland) Act 1995. The welfare of the child is paramount, the court makes an order only if it is better for the child than making no order, and the court takes account of the child’s views. A parent who asks the court to change an established arrangement must give the court material capable of justifying the change. The sheriff also considered section 11(7D), which requires the court to consider whether an order is appropriate where the parents would have to co-operate.
On money, section 9(1)(b) of the Family Law (Scotland) Act 1985 allows the court to take account of an economic advantage derived by one party, and an economic disadvantage suffered by the other, from contributions made during the marriage or after separation. An incidental order under section 14 of the 1985 Act can direct how the proceeds of a sold home are paid out.
The decision
The father had moved from seeking equal care to seeking an unequal split of 8 nights to 6 nights per fortnight, with a residence order in his favour. The sheriff rejected the change. He could not explain how it would benefit the children or work in practice, and the wish to be recognised as the parent in control was not connected to their best interests. The sheriff described the case as one of entrenched parental conflict rather than serious welfare concern. Both children were thriving, and their views supported the existing arrangement. The existing arrangement was continued by a final shared residence order, with a fortnightly term-time pattern and shared holidays.
On the money, the sheriff gave credit only for the net reduction in the mortgage debt between separation and sale, which was £7,266.19, and not for every instalment the mother paid. The sheriff considered the reduction in mortgage capital, rather than treating every post-separation mortgage payment as recoverable. On the evidence in this case, the mother’s occupation of the home and the other circumstances did not offset the economic imbalance identified. The sheriff directed the pursuer’s agents to pay the mother a first tranche of £1,628 from the proceeds and to divide the rest equally. The remaining financial craves were dismissed and expenses were reserved.
What it means in practice
- A parent who wants to move from equal care to an unequal split should expect to give a clear, evidence-based reason tied to the children’s welfare, not to status or to a wish to be seen as the main carer.
- Entrenched conflict between parents does not by itself justify changing an arrangement under which the children are doing well.
- A spouse who keeps paying the mortgage after separation may be given credit, but the court looks at the real reduction in the debt and at all the circumstances, not at every payment made.
Every case turns on its own facts. If you are dealing with arrangements for your children or the division of a family home, please contact us to discuss your position.