Property bought before marriage
Family Law (Scotland) Act 1985, s.10(4)(a): “Matrimonial property means all the property belonging to the parties or either of them at the relevant date which was acquired before the marriage for use by them as a family home or as furniture or plenishings for such home.”
Key Point: The statute itself requires that the property was acquired for use by them as a family home. This is an intention/purpose test at the time of acquisition.
Practical Test for Pre‑Marriage Homes
A house purchased by one party before marriage but during the relationship will be matrimonial property only if:
- Purpose at acquisition: At the time of purchase, it was intended for use by them both as the family home (not just for the buyer alone).
- Actual use: The property did become the family home during the marriage.
Evidence: Communications (missives, emails, texts), engagement/marriage plans, cohabitation timing, renovations for joint use.
Case Law
- Grant v Grant [2018] SAC (Civ) 4
- House built during marriage on land acquired pre‑marriage.
- Land excluded (pre‑relationship, not for family use).
- House included (acquired for family home).
- Confirms focus is on purpose at acquisition.
- F v R (2018 Fam LR 146)
- Outer House recognised intention at acquisition is relevant in deciding whether a pre‑marriage asset falls within s.10(4)(a).
- Wallis v Wallis 1993 SC (HL) 49
- Establishes valuation at the relevant date, not later.
- Jacques v Jacques 1997 SC (HL) 20
- Confirms equal division is the starting point once property is matrimonial; special circumstances are needed to depart.
- Harris v Harris 2013 Fam LR 122; Cunningham v Cunningham 2001 Fam LR 12
- Illustrate source-of-funds arguments under s.10(6)(b) as a special circumstance for unequal division.
Checklist
When assessing if a pre‑marriage property is matrimonial:
- Who bought it, and when?
- Was it acquired while already in a relationship?
- Any evidence at the time showing it was purchased for them to live in as a family home?
- Did they in fact live there as the family home after marriage?
- Consider possible special circumstances (e.g. source of funds).
Bottom Line:
A house bought pre‑marriage in one party’s name becomes matrimonial property only if it was acquired for the couple’s use as a family home and did serve that purpose. The intention/purpose test is embedded in the legislation itself (s.10(4)(a)).
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