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JGM
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 11139
Experience:  30 years as a practising solicitor.
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My solicitor lodged a motion for order of sale on the marital

Resolved Question:

My solicitor lodged a motion for order of sale on the marital home at the procedural hearing today. The sheriff denied the motion. Our solicitor said that he spoke first then the defence solicitor who brought up issues that he was then not allowed to address. Can I get him to appeal the denial of sale?
Submitted: 2 years ago.
Category: Scots Law
Expert:  JGM replied 2 years ago.
Thank you for your question.
Is this as part of a divorce action?
What issues was he not allowed to address?
-Could you explain your situation a little more?
Customer: replied 2 years ago.
Hi
Yes. It is part of a divorce action. My wife's solicitor sent another member of staff who made a mistake at the options hearing by stating there were child contact issues. The sheriff then set a Procedural hearing. This was initially going to be used to set the date for the diet of proof but as the sale of the marital home has been the main bone of contention, my solicitor advised me to go with a motion for order of sale. My wife wants to delay the sale of the house until march 2015. We had almost reached an agreement based on her wishes (no minutes written up or letters exchanged) but about three days after this my partner discovered she was pregnant. We live in a one bedroom flat and so sale of the marital home ASAP became a necessity and so we changed the agreement to ask that the house went on the market now and in return I would pay the full mortgage until a sale was secured.
My wife's argument against this is that she feels it will disrupt our youngest child's education as she is about to go into P7. My counter argument was that delaying would affect our eldest child who will be going into third year by the time the house secured a buyer. Either way, one child would potentially have to deal with some form of upheaval. At the procedural hearing my solicitor argued relating to my eldest daughter and also the issue of clean break in Scottish law. My wife's solicitor argued relating to Sophie but then also stated that I had rescinded on the agreement and this coincided with my partners return from Paris (the implication being that my partner had been the cause that the agreement collapsed) and then said that a relationship that I had with my youngest daughters headmistress 3 years ago had put further strain on Sophie. My solicitor was not allowed to inform the court of my partners pregnancy nor to address the issue of my previous relationship. My wife and I had been separated for 7months when I began that relationship during which time my wife had two relationships of her own. My solicitor was shell shocked when the female sheriff would not let him address either off these issues and the motion was denied.
Expert:  JGM replied 2 years ago.
Thank you for your response.
In my opinion the motion should never have been enrolled in the first place. If there is no agreement on the sale of the family home and where there are competing arguments by each party for or against the sale, either now or at a later stage, the only way that the sheriff can reach a reasoned decision is after hearing evidence.
So a decision as to whether the house should be sold or not will only be made after the proof.
With respect to your lawyer, the motion should never have been enrolled in the first place. The answer to your original question about appealing this decision is no, you are wasting your time and money going to appeal.
The sheriff perhaps should have allowed your lawyer a right to reply to the issues you refer to but I suspect her underlying reason for doing so was that she was never going to grant a motion for sale under any circumstances without first hearing evidence.
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