Graham v Graham [2025] SC KDY 45 (Kirkcaldy Sheriff Court)
Equal sharing with sale of the matrimonial home and pension sharing order to achieve fairness
Background
This Sheriff Court decision from Kirkcaldy considered financial provision on divorce where the principal assets were the former matrimonial home and the parties’ pensions. Both spouses sought a clean break and a practical way to implement equal sharing under the Family Law (Scotland) Act 1985.
The marriage had lasted over a decade. There were no ongoing disputes about children. Each party worked full time, but the family wealth was tied up in the house and pension savings. The key issue was how to realise fairness when neither spouse could retain the house outright or offset pension values in cash.
Key legal issues
- whether equal division of the net matrimonial property remained the fair starting point under section 9(1)(a);
- how to implement sharing of the matrimonial home when refinance was not feasible; and
- whether a pension sharing order was necessary to equalise retirement benefits accumulated during the marriage.
Evidence and reasoning
The court examined up-to-date valuations from local surveyors and actuaries. The property market evidence showed limited mortgage capacity for either spouse after separation, and selling the home was the only realistic route to liquidity. Both parties agreed on the property’s market value and the outstanding mortgage balance. Pension valuations (CETVs) were lodged for two occupational schemes, one of which had grown significantly during the marriage.
Applying the principles of Jacques v Jacques and Wallis v Wallis, the Sheriff found no “special circumstances” justifying unequal division. Equal sharing therefore remained the statutory default. However, to achieve that in practice required both a sale of the home and a pension transfer to reflect the deferred value of retirement benefits.
Decision
The Sheriff ordered:
- Sale of the former matrimonial home with the net free proceeds divided equally between the parties;
- a pension sharing order in favour of the economically weaker party to equalise total pension value accrued during the marriage; and
- ancillary orders governing marketing, sale and transfer procedures within defined timescales.
The Sheriff emphasised that equal sharing requires considering both liquid and deferred assets. Where one spouse’s financial security lies mainly in a pension fund rather than immediate cash, a pension share ensures parity without forcing further borrowing or early pension encashment. The judgment also reaffirmed that the policy of the 1985 Act is fairness, not rigid equality, achieved through practical orders tailored to each case.
Key takeaway
Scottish courts frequently order sale of the matrimonial home with equal division where refinancing is impractical. To ensure genuine parity, a pension sharing order can equalise deferred assets so that both parties exit the marriage with comparable overall wealth. This case shows the importance of current valuations, realistic assessment of mortgage capacity, and timely implementation of pension share orders to avoid enforcement delay.
Citation: Graham v Graham [2025] SC KDY 45 (30 June 2025)