Thomas Corsan against Linda Corsan (Court of Session)

Factual and Procedural Background

This case concerns a divorce action between Plaintiff and Defendant, who were married on 22 September 1995 and separated on 21 August 2021, the relevant date for assessing matrimonial property. The Defendant consents to the divorce. The parties have two adult sons and no children under 16. The Plaintiff seeks transfer of the Defendant's interest in a partnership ("the Partnership"), which the Defendant does not oppose, while the Defendant seeks payment of a capital sum. The dispute primarily concerns financial provision on divorce, including the valuation and division of matrimonial property and accounting for special circumstances and economic advantage or disadvantage.

The court previously issued an opinion on 17 January 2025, which contained some arithmetical and valuation errors that have been corrected in this supplementary opinion. The court also addressed agreed matters such as the Defendant retaining a motor car valued at £15,000, which should be deducted from the capital sum payable by the Plaintiff.

The Partnership was formed in 2015, succeeding a prior partnership involving the Plaintiff and his parents. Issues arose regarding whether certain assets, including a property known as CM Fields, constituted matrimonial property and how to value and divide such assets. The court considered the parties' respective contributions, the nature of certain gifts and inheritances, and the Defendant's pension and economic disadvantage.

Legal Issues Presented

1. Whether certain assets, specifically the heritable property CM Fields, constitute matrimonial property and how they should be valued.
2. Whether the Plaintiff's acquisition of capital from his parents and other financial transfers should be excluded from matrimonial property or treated as special circumstances affecting division.
3. The appropriate valuation of the Partnership and the Defendant's interest therein.
4. Whether the Defendant's pension should be treated wholly or partly as matrimonial property, considering pre-marriage contributions.
5. Whether and to what extent economic advantage or disadvantage, including loss of earning capacity and pension accumulation, should be taken into account in the division of matrimonial property.
6. The terms and valuation of the transfer of the Defendant's interest in the Partnership to the Plaintiff.

Arguments of the Parties

Appellant's (Plaintiff's) Arguments

• The Plaintiff contended that the £88,522 gifted by his parents on their retirement from the prior partnership was not matrimonial property and should be excluded from the capital account, or alternatively treated as a special circumstance justifying an unequal division.
• The Plaintiff argued that the £10,000 paid by his father into the business bank account and the £9,635 inherited investment funds were not matrimonial property or should be treated as special circumstances.
• The Plaintiff sought transfer of the Defendant's interest in the Partnership and submitted valuations supporting his position.
• The Plaintiff contended that the reimbursement of £10,000 to the Defendant's mother by the Plaintiff did not constitute a special circumstance justifying deviation in division.
• The Plaintiff challenged some of the Defendant's evidence regarding economic disadvantage and pension loss.

Appellee's (Defendant's) Arguments

• The Defendant did not oppose the transfer of her interest in the Partnership but sought a capital sum in return.
• The Defendant argued that her pension should be valued only in respect of post-marriage contributions, excluding pre-marriage elements as special circumstances.
• The Defendant claimed economic disadvantage based on loss of earning capacity and loss of opportunity to accumulate a pension, supported by expert evidence.
• The Defendant submitted that the loss of the family home and other factors compounded her economic disadvantage.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Coyle v Coyle (2004 Fam LR 2)	Clarification of the approach to economic disadvantage under section 9(1)(b) of the Family Law (Scotland) Act 1985, rejecting a compensatory approach and emphasizing fair account in the overall division.	The court adopted Lady Smith's reasoning, applying a fair account approach rather than compensatory assessment in evaluating the Defendant's economic disadvantage.

Court's Reasoning and Analysis

The court carefully examined the nature and timing of the assets and contributions to determine which constituted matrimonial property under the Family Law (Scotland) Act 1985. It found that the Plaintiff's interest in the prior partnership, including CM Fields, was acquired before marriage and initially not matrimonial property. However, upon formation of the Partnership in 2015, CM Fields became partnership property and thus matrimonial property, as the Partnership is governed by the Partnership Act 1890.

The court rejected the Plaintiff's argument that the £88,522 gifted by his parents should be excluded from matrimonial property or treated as special circumstances justifying unequal division. It reasoned that the Plaintiff chose to form the Partnership and invest the funds, which were intermingled with business assets and depreciated over time, reflecting joint efforts of the parties. Similarly, the £10,000 paid by the Plaintiff's father was held to be matrimonial property.

However, the court accepted that the £9,635 inherited investment funds, which were not converted into business assets, could be excluded from matrimonial property as a special circumstance in the Plaintiff's favour.

Regarding valuation, the court preferred the Defendant’s expert valuation of the Partnership at £374,391 as legally correct, rejecting the Plaintiff’s expert’s exclusion of two-thirds of an uplift in value related to the Plaintiff’s parents.

The court found the reimbursement of £10,000 to the Defendant’s mother for a property purchased for the parties’ son did not constitute a special circumstance favouring the Plaintiff, as the property was matrimonial and purchased for a matrimonial purpose.

On the Defendant’s pension, the court accepted expert evidence that only the post-marriage contributions (£16,386) should be included in matrimonial property, allowing the Defendant to retain the pre-marriage portion.

In assessing economic disadvantage, the court applied the approach from Coyle v Coyle, taking “fair account” rather than compensating fully. It considered expert evidence on loss of earning capacity and pension opportunity, concluding that the Defendant suffered a loss of earning capacity of approximately £4,000 net annually and a total loss of pension opportunity around £197,744. Combining loss of earning capacity and pension loss, the court quantified economic disadvantage at about £230,000 but awarded £115,000 as a discrete sum under section 9(1)(b), reflecting a fair account rather than full compensation.

The court ordered transfer of the Defendant’s one-half interest in the Partnership in return for £145,947, which was unopposed.

After valuing all matrimonial assets and liabilities and applying the principles of fair sharing and reasonableness with regard to the parties' resources, the court calculated a capital sum payable by the Plaintiff to the Defendant of £325,209, reduced by £15,000 due to the Defendant retaining a car, resulting in a net sum of £310,209.

Holding and Implications

The court granted decree of divorce and made the following financial orders:

• The Defendant’s one-half interest in the Partnership is to be transferred to the Plaintiff in exchange for £145,947.
• The Plaintiff is to pay the Defendant a capital sum of £310,209, reflecting the fair division of the net matrimonial property and a discrete award for economic disadvantage.
• The Defendant retains ownership of a motor car valued at £15,000, which is deducted from the capital sum payable.

The decision applies the statutory framework under the Family Law (Scotland) Act 1985, emphasizing fair sharing of matrimonial property, appropriate consideration of economic advantage and disadvantage, and recognition of special circumstances without establishing new precedent. The orders are tailored to the parties' particular circumstances and resources, reflecting the court’s discretion in financial provision on divorce.