In 2000 a schism occurred among the adherents of the Free Church of Scotland (FC), with a substantial minority of ministers, elders and members separating themselves from the majority and associating themselves according to Presbyterian forms of church government. They continued to adhere to the laws and practice of the FC but operated outside its structures of government, and were known for administrative purposes as the Free Church (Continuing) (FCC). The majority of members of the pre-2000 FC remained within the FC and its structures of government. There were no doctrinal differences between the two groups. The proceedings concerned the beneficial ownership of a church and manse at Broadford in the parish of Strath, Skye, which was subject to a congregational trust (ie the property was held for the purposes of a particular congregation rather than for the purposes of the FC as a whole). The congregation at Broadford had divided between those who separated themselves from the structures of government of the FC and became members of the FCC and those who continued within the structures of government of the FC. The FCC members were in possession of the church and manse. The FC members brought an action seeking, inter alia, a declarator that the church and manse belonged beneficially to the FC congregation rather than the FCC congregation.

At first instance the Lord Ordinary granted the FC pursuers the declarator sought by them. The Inner House refused a reclaiming motion by the FCC defenders. In any division among the members of the congregation of a voluntary church, the right to the congregational property depended on which party adhered to the principles on which the congregation associated and formed itself. The factors that were relevant in determining the principles on which the congregation associated depended upon the particular agreement or trust deed to which the property was subject. Those factors might include the maintenance of certain points of doctrine; they might equally include simple adherence to the governing body of the church in question. In each case it was the trust deed or other agreement that determined what were the fundamental principles on which the congregation associated. In the present case, a fundamental principle on which the congregational trust was established was that the congregation should form part of the structures of the FC, including its system of church courts (ie presbyteries, synods and General Assembly), subjection to the governance of such courts being a distinctive feature of the Presbyterian form of church government. Membership of, and participation in, the institutional structures of the FC was an essential feature of the trust. As there was no difference between the FC and the FCC on any question of doctrine, it was only the differences between the parties relating to institutional structures that were relevant. The FCC did not maintain the continuity of church government of the pre-2000 FC; in particular it did not remain part of the system of church courts of the pre-2000 FC. The FC congregation did continue to adhere to the structures of the pre-2000 FC. On that basis it was the FC, and not the FCC, congregation who satisfied the requirements of the congregational trust and who were, accordingly, entitled to the beneficial ownership of the church and manse. [Alexander McGregor]