Scottish Court of Session Decisions

Introduction

In this action the principal conclusion for the pursuer is for declarator that she was married by cohabitation with habit and repute to the late Robert Noel Sangster Logan ("Mr Logan") from about February 1996 until the death of Mr Logan on 4 May 1998. The first and second defenders are Mr Logan's executors. The pursuer also concludes for interdict against them from distributing, disbursing or in any way alienating Mr Logan's estate pending the resolution of the present action, except with the written consent of the pursuer or by a further order of the court. Interim interdict was granted in terms of this conclusion on 22 October 1998. The Lord Advocate was also called as a defender for any interest he might have, but did not enter appearance.

The Law

Marriage by cohabitation with habit and repute is the only form of irregular marriage still recognised by the law of Scotland. It will assist my discussion of the evidence in this case if I set out at this stage the requirements for its constitution. In Clive, Husband and Wife, 4^th ed., para.05.025 it is stated:

Both counsel treated this passage, and I accept it, as being an accurate summary of the law as it now stands.

As I shall discuss more fully in due course, it was not in dispute in the present case that the pursuer and Mr Logan were at all material times free to marry each other, that they had cohabited and that their cohabitation had been for long enough to satisfy the requirements of the law. The principal issues were whether the pursuer had proved the habit and repute necessary for the constitution of marriage and, if so, whether the first and second defenders had rebutted the presumption of tacit consent to marriage arising from these circumstances by proving that one or both of the pursuer and Mr Logan had not in fact consented to be married. It is with these issues in mind that I now embark on a more detailed discussion of the law.

The earliest case to which I was referred was Elder v McLean (1829) 8 S. 56. Lord Pitmilly said at p.61:

Lord Glenlee, at p.62, spoke of the need for the opinions of witnesses who spoke to repute to have arisen from the conduct of the man and the woman "in the face of the world". The next case to which reference was made was Campbell v Campbell (1866) 4 M. 867, affirmed (1867) 5 M. (H.L.) 115. Lord Justice Clerk Inglis, Lord Neaves and Lord Mure, who were among the consulted judges, after referring with approval to the use by Erskine of the phrase "tacit consent" said, at p.925 of the Court of Session report:

In the House of Lords report, at p.140, Lord Westbury said, under reference to the opinions delivered in the Court of Session:

Campbell v Campbell has been consistently followed, as it appears to me, in all the subsequent cases. In Petrie v Petrie 1911 S.C. 361 Lord Johnston said at p.367 that

In Hendry v Lord Advocate 1930 S.C. 1027 Lord Anderson said at p.1034, under reference to the evidence in that case:

In Nicol v Bell 1954 S.L.T. 314 Lord Patrick said at p.322:

Kamperman v MacIver 1994 SC 230 was principally concerned with the period of time which required to elapse before a marriage by cohabitation with habit and repute could be established, but at p.231 the court said that much would depend upon the nature and quality of the cohabitation and repute during the period in question, and at p.232, under reference to Campbell v Campbell and the earlier case of Lapsley v Grierson (1845) 8 D. 34, it was emphasised that in every irregular marriage the whole circumstances are to be looked at.

All the cases to which I have referred so far were decided in the Inner House of the Court of Session or the House of Lords. In addition, counsel referred to a number of cases decided in the Outer House of the Court of Session, which appear to me to serve as illustrations of the application of the foregoing principles to their own particular circumstances. In Morris v Morris, 13 November 1987, unreported, Shaw v Henderson 1982 S.L.T. 211, Donnelly v Donnelly's Executor 1992 S.L.T. 13 and Dewar v Dewar 1995 S.L.T. 467 the circumstances were held sufficient for the constitution of marriage by cohabitation with habit and repute. By way of contrast, in Walker v Roberts 1998 S.L.T. 1133 the circumstances were held to be insufficient. In the latter case temporary judge J.M.S. Horsburgh, Q.C. referred at p.1135 to the difficulty, in the customs of today, in making a distinction between cohabitation as man and wife and simple cohabitation, and he also concluded at p.1136 that a belief that the parties in that case were husband and wife existed only at a peripheral level of social contact. References to other cases may be found in the footnotes to Clive, op. cit., paras.05.032 - 05.034.

The Facts

The pursuer was aged 56 at the date of the proof. By joint minute of admission for the parties it was agreed that she was divorced from David Ackerman by order of the Chancery Court of DeSoto County, Mississippi, which order had final effect on 26 March 1983. I was not given a complete account of her family circumstances or marital history. She had a daughter Barbara, who was aged 29 at the date of the proof, and whose father was Andrew Weir. Barbara became engaged to David Davidson in September 1995 and they were married on 5 October 1996. They had a son, who was born on 13 June 1997 and christened on 16 November 1997. The pursuer is a health and diet consultant. For some years until shortly before the proof she had a shop at 713 Great Western Road, Glasgow at which she sold health food and coffee. She also wrote publications on matters of health and diet.

Mr Logan died from injuries sustained in a hill walking accident on 4 May 1998, when he was aged 57. Again, I was not given a full account of his family circumstances, but reference was made in the course of evidence to his having had two brothers and a sister. He was married to Winifride Helena Lyle Arthur or Logan, who died in about June 1993. They had one son, Bruce Logan, who was aged 29 at the date of the proof. Bruce Logan is one of Mr Logan's executors and as such a defender in the action. He was married on 6 June 1996.

Mr Logan was a man of wide interests. For many years he was employed by the BBC. Latterly he was employed by Scottish Television as their compliance officer, ensuring that programmes, promotions and advertisements were made within the guidelines laid down by the Independent Television Commission. For many years also he was a Conservative member of Glasgow District Council and became chairman of the Civic Amenities Committee. His father was a minister, and for many years he was an elder at Glasgow Cathedral. Not long before his death he became session clerk there. Among other interests he was chairman of the Glasgow Art Galleries and Museums Association and chairman of the British Association of Friends of Museums. He was a member of the Board of Management and latterly chairman of the Glasgow Print Studio. He was also heavily involved in Westbourne Music. His main residence for many years was at 2A Westbourne Gardens in Glasgow, but in addition he had a cottage at Elie in Fife. He was a keen hill walker. The whole evidence in the case, including the obituaries which were lodged as productions, demonstrates that he was an outgoing and generous man who was exceptional not only in the number of people from various spheres with whom he came into contact, but also in the high regard in which they held him. I think it clear also that he was conscientious and scrupulous in his dealings with others, particularly in his immediate family circle. As best I can judge, he was someone who would not make any significant move in a relationship with someone close to him without due reflection; and he would not speak ill of someone close to him without good cause.

The pursuer first met Mr Logan in his capacity as a councillor in 1993. In January 1994 they met again and Mr Logan initiated a social relationship with her, which rapidly progressed to becoming a sexual one. On 23 January 1994 they went out for dinner together: the pursuer called this their "commitment dinner". At that time the pursuer owned a flat at 11 Beaconsfield Road in Glasgow, which she was in the course of selling. Mr Logan sometimes stayed the night there, or she stayed at 2A Westbourne Gardens. In about May 1994 the pursuer moved in to live with Mr Logan at 2A Westbourne Gardens. Shortly thereafter she became the owner of her present flat at 1012C Great Western Road, Glasgow, which she had been in the course of buying before she met Mr Logan.

The pursuer explained that she and Mr Logan found that they had much in common, for example they had attended the same exhibitions, plays and concerts before meeting each other. After they started living together they were able to pursue their common interests by attending social and cultural events together. They clearly had a wide circle of friends and acquaintances. They entertained their relatives, friends and acquaintances at drinks and dinner parties. The pursuer was not a member of the congregation at Glasgow Cathedral, but she attended there from time to time, particularly when Mr Logan was on duty. She attended annual dinners in connection with the Cathedral. Mr Logan frequently dropped into her shop. He gave her substantial financial assistance in her business. He provided her with sums in excess of £20,000. There is a dispute, which I do not require to resolve and which may become the subject of separate litigation, as to whether Mr Logan lent or gave this money to the pursuer. Undoubtedly he gave her generous financial support. Each of them contributed to the household expenditure in various ways. They bought a number of substantial items to furnish the house and shared the expenditure. They also carried out renovations to the cottage at Elie. For some time they shared the principal bedroom. They were clearly well established as a couple and were so regarded by those with whom they came into contact.

It is an unusual feature of this case that the pursuer was quite precise about the time when, according to her, Mr Logan and she became husband and wife. It is not in dispute that in about the middle of February 1996 Mr Logan asked her to marry him and she agreed. Thereafter they went to a jewellers' shop and bought a ring. The pursuer showed me this ring, which she was wearing on the ring finger of her left hand, and described it as a diamond eternity ring, in the form of a gold band set with diamonds. In early March 1996 she and Mr Logan stayed at a hotel in Auchterarder and while they were there he put the ring on her finger. They stayed in a suite at the hotel and had a champagne dinner. According to her, they regarded this as their honeymoon, and the ring as a wedding ring. Thereafter, according to her, they regarded themselves as married, as being husband and wife. As she put it in cross-examination: "We believed we were married, that was the job done." She said that when she had agreed to marry Mr Logan, he was very happy and told everyone. She wanted to keep it private, but told her daughter Barbara, her brother and one friend, Mairi Ogg. The recipients of this news appear to have treated it as an announcement of an engagement, that is to say an agreement to be married at some future date. Barbara Davidson gave evidence that Mr Logan bought her mother the ring as an eternity ring after they were planning to be married. David Davidson said at the time Mr Logan asked the pursuer to marry him in February 1996 he gave her a ring, which he described. These appear to me to be descriptions of an engagement and of the ring as an engagement ring. An immediate neighbour, Beryl Markus, who lived at 2 Westbourne Gardens, gave evidence, which I accept, that during 1996, at a time of year when it was warm enough for people to sit outside, the pursuer came over and showed her the ring, saying that it was her engagement ring and that she and Mr Logan were engaged. She also said that the wedding was to be postponed until after the weddings of Bruce Logan and her daughter Barbara. Mrs Markus also spoke of attending an engagement party at 2A Westbourne Gardens. There was other evidence to a like effect, particularly from Mrs Markus's husband Professor Thomas Markus. The only witness, apart from the pursuer, who referred to the ring as a wedding ring, was Jayne Black, but I do not regard her evidence as being reliable in this respect because she said that the pursuer wore a gold wedding band, which was certainly not the case. No witness said that after the pursuer and Mr Logan had visited the hotel in Auchterarder in March 1996 they represented that they were now married to each other and that the ring was a wedding ring. I reject as untruthful the pursuer's evidence that such an event took place. On the contrary, I am satisfied that she and Mr Logan had agreed to become married at some future date and had thus become engaged to be married. The pursuer gave evidence that between her acceptance of Mr Logan's proposal to her in February 1996 and their visit to the hotel in March 1996 Mr Logan spoke to his son Bruce Logan, who wanted them to postpone their wedding until after his own, as it would "take the shine off his wedding" if they were married first. Bruce Logan denied having said this to his father and I accept that he did not. Mr Logan may, however, himself have wished to find some excuse for postponing the wedding. Certainly there was no reason for there to be any urgency in their becoming married. In any event, it is incompatible with the pursuer's own account of the reason given by Mr Logan for postponing the wedding that he should have regarded what took place at the hotel in March 1996 as being "the job done". What was under discussion was an event which was to take place at a future date, not one which had been rendered superfluous by what had alre

The pursuer avers in her pleadings that Mr Logan introduced her to his social and business acquaintances as his wife, that members of the various groups and committees with which he was involved considered them to be married, that neighbours and customers of her shop considered them to be married, that many of the congregation at Glasgow Cathedral welcomed her as his wife, and that she and Mr Logan were believed to be married by all except their close family. On 29 January 1999 the pursuer was ordained to give intimation of the names and addresses of all persons to whom Mr Logan introduced her as his wife and the names and addresses of all persons who considered Mr Logan to be married to the pursuer. This interlocutor was obtempered by intimation of a list, now a production, containing the names of about 122 individuals and couples.

In the event, the pursuer called strikingly few witnesses to support her contentions. The only members of her immediate family whom she called were her daughter and son-in-law, Barbara and David Davidson. When they were asked direct, and to some extent leading, questions about the central issue in the case, Barbara Davidson described her mother and Mr Logan as being a committed couple, "two together" who acted like a married couple. David Davidson, who is a solicitor and since early 1999 has been an elder at Glasgow Cathedral, said that they presented themselves as a married couple, and everything they did was consistent with their being married, though he was aware than no formal ceremony had taken place. I do not regard his evidence, taken in context, as meaning that the pursuer and Mr Logan held themselves out as being a married couple rather than that they acted as a married couple would do. While the evidence of Barbara and David Davidson was, quite understandably, as supportive of the pursuer as was consistent with honesty, it appears to me to fall short of saying that the pursuer and Mr Logan held themselves out and were regarded by members of their immediate family as being married. The pursuer's brother was not called as a witness, nor was her friend Mairi Ogg.

Nine witnesses were called on behalf of the pursuer to give evidence of the alleged habit and repute, and I shall summarise their evidence in the order in which it was given. Kendon McKie met the pursuer in her shop in about 1995. He had gone there for health advice. A friendship developed and he helped the pursuer by assisting in the shop for a period from perhaps December 1995 to May 1998. He occasionally gave her a lift home and was invited to the house for parties and meals in 1996 and 1997. In about April 1996 the pursuer introduced Mr Logan to him as "my husband Rob". Thereafter he believed them to be husband and wife. William Cahill, a former CID officer, said that he met the pursuer frequently in about September and October 1996 when he was buying a flat from her. She referred to Mr Logan as her husband, and when Mr Cahill met Mr Logan he assumed he was her husband. David Gilchrist, a chartered surveyor, who was instructed by the pursuer to provide professional services in 1995 and 1996, said that he had the impression that she and Mr Logan were living together as man and wife but could not say whether or not they were married. Brian Watson, the managing director of a residential letting agency, first met the pursuer at a public meeting in July 1994 and then had professional dealings with her. He went to her shop several times. He said that he always thought of them as a couple, married, or living together as husband and wife. Jayne Black said that she met the pursuer in her shop, perhaps in about November 1996, when she had gone there as a customer. On two occasions she went to the house at Westbourne Gardens and on one of these occasions she met Mr Logan, who introduced himself as the pursuer's husband. She regarded them as a couple. Maureen McCann said that she had got to know the pursuer when she went to the shop as a customer in the summer of 1996. About September 1996 she went to the house and there met Mr Logan, who introduced himself as the pursuer's husband. The pursuer also referred to him as her husband. James Mangan, a furniture dealer and remover, met the pursuer in her shop in about 1994 and then did various jobs for her. He said that the pursuer introduced Mr Logan as her husband in about 1995. Philip Neaves rented a property from the pursuer and became friendly with her. He came to know the pursuer and Mr Logan socially and had a strong impression that they were a married couple. Finally, Neil McLelland met the pursuer in her shop where he became a regular customer. He met Mr Logan when the pursuer introduced him as her husband. He just accepted them as being man and wife. I regard the evidence of David Gilchrist, Brian Watson and Philip Neaves as being insufficient to support the averments which the pursuer seeks to prove. There are thus six witnesses, Kendon McKie, William Cahill, Jayne Black, Maureen McCann, James Mangan and Neil McLelland, whose evidence would tend to support the pursuer's contentions. I am prepared to accept the evidence of each of them. They all appeared to me to be credible and reliable, although I had some reservations about the reliability of Jayne Black in view of her mis-description of the pursuer's ring. There are, however, obvious restrictions on the weight which can be given to this body of evidence. All of these witnesses were comparatively recent acquaintances of the pursuer, whom she had met in a business context. Although she may thereafter have been on reasonably friendly terms with each of them, I do not regard the friendship in any case as having been close. I would regard all these witnesses as having been on the periphery of the acquaintanceship of the pursuer and Mr Logan as a couple. While I accept that Mr Logan was prepared on occasion to allow himself to be introduced, or even to introduce himself, to such people as the pursuer's husband, I regard this as no more than a convenient usage when me

Before I turn to the evidence of witnesses who were called on behalf of the first and second defenders to contradict the pursuer's contentions, I propose to outline the history of events prior to the death of Mr Logan. I have already described the activities in which the pursuer and Mr Logan engaged as a couple. They attended Bruce Logan's wedding in Norfolk on 6 June 1996 as a couple. Mr Logan was closely involved with the arrangements for the wedding of the pursuer's daughter Barbara on 5 October 1996, and indeed contributed to it financially and arranged for the reception to be held at the Glasgow Art Club, of which he was a member. Mr Logan was delighted when their son was born on 13 June 1997, bought presents for him and arranged for his christening at Glasgow Cathedral on 16 November 1997. A rather unnecessary amount of time was taken up at the proof by a detailed examination of photographs which were taken at these occasions and of an edited video recording of the meal at a restaurant after the christening. It appeared that I was being asked to draw conclusions from these as to the extent to which the pursuer and Mr Logan were or were not treated as a couple. It is sufficient to say that I am satisfied that they attended these events as a couple. But what kind of couple? I have already given my reasons for holding that, as between themselves, they had become engaged and no more than that in February and March 1996. It was generally known, certainly among their own families, that they had become engaged. The engagement had never been broken off. So in my opinion it was as an engaged couple, and indeed a couple who were living together, that they were involved in these events. It may be asked why they did not marry, at least after October 1996. It appears to me that the answer to this question can be supplied, with the benefit of hindsight, by reference to subsequent events which yield the inference that they had reached a tacit agreement that they would not go so far as to become married. This is not to say that Mr Logan did not continue to be well disposed towards the pursuer. In March 1997, for example, he gave her a ring set with diamonds which he already owned. She wore this also on the ring finger of her left hand (perhaps I should mention that she said that she had some disability which prevented her from wearing rings on her right hand). He had previously given her some diamond earrings as well as the engagement ring.

Thus, although the relationship had not progressed beyond engagement to be married, I would not say that there was any distinct deterioration in it until later in 1997. As I have mentioned, Barbara and David Davidson's baby was born on 13 June 1997. He proved to be very wakeful and demanding. Barbara Davidson was breast-feeding him and she became so weak and tired that it was arranged that she and the baby would stay with the pursuer and Mr Logan at 2A Westbourne Gardens. They went there in August 1997 and, in the event, stayed until March 1998. David Davidson was in the course of taking up a new position as a solicitor in Glasgow and he and his wife were selling their flat in Edinburgh and buying a flat in Glasgow. There were difficulties in their taking entry to the new flat, so Barbara and the baby stayed at 2A Westbourne Gardens for longer than had originally been intended. David Davidson also stayed there for some of the time. The pursuer spent much of her time looking after Barbara Davidson and the baby, as well as continuing to run the household and her own business as before. It must have been a particularly stressful time for the pursuer and Mr Logan. There was evidence, which I accept as being consistent with things said by Mr Logan before his death, that the physical aspect of their relationship had deteriorated. The sleeping arrangements were explored in some detail during the course of the proof, but I do not think it necessary to discuss them in such detail here because if the nature and quality of the cohabitation and repute were not sufficient to establish a marriage by, say, August 1997, it was not suggested on behalf of the pursuer that anything which happened thereafter was sufficient for that purpose. Bruce Logan gave evidence, which I accept, which would serve to establish that the relationship between the pursuer and Mr Logan had deteriorated markedly from no later than December 1997 onwards. The pursuer, in giving evidence, denied that there had ever been a quarrel between her and Mr Logan. Bruce Logan, however, said that his father had told him that his relationship with the pursuer had become, as Bruce Logan put it, "fairly rocky". The pursuer had wanted to be alone with her family for Christmas in 1997, so Mr Logan spent Christmas in Norfolk. There had been a "fairly major argument" between the pursuer and Mr Logan on 30 January 1998, which Mr Logan described to his son the next day. They had been discussing the pursuer's business affairs and she had criticised him for not helping out more and had asked him for some money. Mr Logan had asked, if he did that, what was there in the relationship for him. Her response had been that she had no feelings for him and she felt "all romanced out". He kept on repeating this to Bruce Logan, in great distress, both then and on subsequent occasions. I accept not only that Mr Logan gave this account to his son but also that he was telling the truth when he did so. Given what I have already held to be established about Mr Logan's character, I think it inconceivable that he should not have told the truth about such a matter.

One witness who particular impressed me was the Reverend Dr William Morris, the minister at Glasgow Cathedral for 32 years prior to the proof. He had known Mr Logan since about 1975 as a member of the congregation there. He recalled meeting the pursuer not long after the death of Mr Logan's wife. He had dealings with them both in connection with the wedding of Barbara and David Davidson and with the christening of their baby, and he and his wife attended the receptions following these events. He said that when the previous session clerk had told him in about August 1997 that he was to retire, and Mr Logan had emerged as a possible successor, Mr Logan spoke to him about his relationship with the pursuer. He had spoken on previous occasions about being friendly with her. Dr Morris was aware of gossip about the closeness of this relationship, but had no evidence of it himself. He himself, on the basis of what Mr Logan told him, regarded the relationship as a close friendship which might have led to marriage. Only about a week or two before Mr Logan died he spoke to Dr Morris in pastoral confidence about his relationship with the pursuer. He said that he wished to end it. He also confided in Dr Morris that he had over the course of time given her a considerable amount of money. He made it clear to Dr Morris that he wanted the relationship to end.

While it is not possible to put an exact date on Mr Logan's last visit to Dr Morris, it can be related to other events in April 1998. On 11 April 1998 the pursuer left 2A Westbourne Gardens and went to live in her flat at 1012C Great Western Road, Glasgow. Although she gave a rather later date than this in her evidence, it is clear from the other evidence that this was the correct date. Although Bruce Logan gave some evidence about what he had heard about this event, the clearest evidence came from some close neighbours in Westbourne Gardens. Thomas Markus, a retired professor of building science, lived with his wife Beryl at 2 Westbourne Gardens, and had known Mr Logan as a neighbour since 1969. He gave his evidence with impressive precision. He said that he did not know Mr Logan intimately, but saw a lot of him. He did of course become aware that the pursuer had come to live at 2A Westbourne Gardens, and in due course that they had become engaged and were intending to marry later. On 7 April 1998 Mr Logan came to the Markuses' house late in the evening. He was extremely upset. He told them that he had had a row with the pursuer in a restaurant. The pursuer had claimed to have marital rights in relation to him, that she was making claims as a common law wife on his property and his house and so on. Mr Logan had said that they had an intimate (by which he meant sexual) relationship when it first started, but this had finished some time previously, and he was troubled by aspects of the relationship, including financial aspects. The relationship had now really come to an end. He wanted the pursuer to move out. There was a sense of urgency about this. Professor Markus regarded them as having been formally engaged and intending to marry. He clearly regarded Mr Logan as being a person who approached his personal relationships with deliberation, and would not have drifted into a "common law" marriage. Mrs Markus gave evidence to a similar effect. In view of his distress they suggested that he call on another neighbour, David Walker, a retired solicitor who lived at 3 Westbourne Gardens. David Walker gave evidence about Mr Logan's visit late that evening. They had a long conversation. Mr Logan was very upset. He said that his trouble was the pursuer, that he had been asking her to leave the house and she refused unless he paid her a substantial sum, that he had paid a lot of money on her behalf over the years and he did not feel like paying any more. They did not occupy the same room and had not done so for years. Mr Logan went on to say that although he was going to be separated from the pursuer he had specifically told her that she could keep the engagement ring. David Walker had previously heard that they were engaged to be married. He explained, with great precision, that he thought that the pursuer was a widower, a single person, and he had never heard anybody say otherwise. He said that Mr Logan made it clear that he had been trying for some time to get the pursuer to leave the house, and he was at the end of his tether. David Walker suggested the name of a firm of solicitors, Levy & McRae, whom Mr Logan might instruct to resolve the matter. After speaking to David Walker Mr Logan returned briefly to speak to Professor and Mrs Markus. He went back to see them the next day, 8 April 1998, with some box files and folders of personal papers which he asked them to keep because he felt that they might not be secure from the pursuer in his house. The pursuer moved out on 11 April 1998. Professor and Mrs Markus saw her going in and out and a furniture van with furniture being loaded into it. On 14 April 1998 a joiner, instructed by Mr Logan, replaced the locks at 2A Westbourne Gardens. Thereafter Mr Logan came back to collect his papers from Professor and Mrs Markus feeling that the house would now be secure and it would be safe for him to take the pa

Notwithstanding these events, the pursuer and Kendon McKie gave evidence that on about 25 April 1998 Mr Logan called at the pursuer's shop. The pursuer said that he acted affectionately and gave her a set of replacement keys for 2A Westbourne Gardens. While I accept that he called at the shop, I do not accept that he gave the pursuer a set of replacement keys. As Bruce Logan pointed out, if she had had them there would not have been the difficulty which was in fact experienced in opening up 2A Westbourne Gardens after Mr Logan died. The pursuer maintained that the separation was only temporary, to enable her to recover her strength after caring for her daughter and grandson. I do not accept her evidence that the separation was intended to be no more than temporary, given the evidence of Professor and Mrs Markus, David Walker, and also Bruce Logan on this point.

Of course, if as a matter of fact the parties were married by cohabitation with habit and repute by, say, late 1997, a separation, either temporary or permanent, would not be effective to undo the marriage: only a decree of divorce would suffice for that purpose. I think that the evidence about the separation is far more significant for the light it casts on what had gone before. I do not believe that if Mr Logan had ever regarded himself as being married to the pursuer he would then have spoken as he did not only to his own son but to Professor and Mrs Markus, David Walker, and above all Dr Morris. The whole evidence about his character and his dealings with her indicates that he was scrupulous and indeed generous in his relationship with her, and if he had ever regarded her as his wife or held her out as being his wife, I do not believe that he would have denied her thus at such a critical time. Counsel for the pursuer sought to make something of the point that Levy & McRae engaged in matrimonial work. I attach no significance to this, as they were suggested by David Walker as being suitable for Mr Logan to instruct in connection with his problem. Moreover, I regard the pursuer's conduct as being consistent with an acceptance that the relationship was not that of husband and wife and could be ended without more ado. In any event, her moving out, if only temporarily, was incompatible with her regarding Mr Logan as her husband and thus someone to whom she could look for support after her daughter and grandson had moved out and she needed to recover her strength.

There was evidence also that after 11 April 1998 Mr Logan felt free to enter into another relationship, which again I do not believe he would have done if he had ever regarded himself as being married to the pursuer. The pursuer refused to accept that Mr Logan had entered into another relationship, but there was clear evidence that he had done so and told his son Bruce Logan about it. Bruce Logan was clearly telling the truth about what his father had told him, and only with great reluctance disclosed that his father's new girlfriend was an artist (whom he named) whom his father had met only a week or so before his death and after spending some time with her he felt that he had entered into a new relationship with her.

On 4 May 1998 Mr Logan went hill walking alone, though he met some other climbers on the mountain where he fell. I was given no clear account of the accident, but after meeting them he seems to have slipped and fallen a considerable distance, landing on a ledge which was hard to reach. Although fatally injured, he was still able to speak, and while the rescue services were awaited the climbers who were looking after him asked him questions which led him to refer to his son and to a girlfriend. I do not think that it is open to me to make very much of this, without clear evidence about the nature of Mr Logan's injuries, the level of his consciousness and what he actually said. At all events, he died shortly after the rescue services had arrived. He was rescued by helicopter and was taken to hospital, but his life could not be saved. The pursuer was told about the accident and went to the hospital. Dr Morris also went. Dr Morris seems to have been under the impression that she was still engaged to Mr Logan. She sought to derive comfort from Mr Logan's having spoken of a girlfriend when he was lying on the ledge. Be that as it may, Mr Logan's family were united in treating her after his death as someone with whom his relationship had ended. I do not propose to go into the details of events leading up to the funeral, beyond saying that it was made clear to the pursuer that she would not be accorded any special status at it. It was in this context that she was told, and refused to accept, that Mr Logan had formed a new relationship. The only point which needs to be made about the funeral arrangements is that no one connected with them regarded the pursuer as being Mr Logan's wife, albeit separated from him. The pursuer was so angered by this that she wrote acrimonious letters to Bruce Logan and his employers.

In addition to those I have already mentioned, a number of other witnesses were called to contradict the pursuer's contentions. Again, I shall summarise their evidence in the order in which they were called. Angus Stewart, Q.C., who also has a cottage in Elie, met Mr Logan in about 1995 in connection with a problem arising from nearby licensed premises. He met him on a number of occasions. He understood that Mr Logan was a widower and had a girlfriend. Mr Logan spoke about her a number of times. Angus Stewart believed that they were engaged at one stage, but thereafter had ceased to be engaged. Alice Pearson, a school friend of the pursuer's daughter Barbara, met the pursuer in about 1982 or 1983 and from time to time thereafter. She attended the wedding in October 1996. She met Mr Logan a few times. She understood that he and the pursuer were not married, but that they were engaged at one stage and later that the engagement had been called off. Jessie Johnston worked for Mr Logan as a cleaner at 2A Westbourne Gardens for 25 years. She continued to work there after the pursuer moved in and did so until December 1997. She regarded them as girlfriend and boyfriend and did not think of their relationship as being anything more than that. She also gave evidence that the pursuer and Mr Logan had not been sleeping in the same room for some time before she ceased to be employed at the house. William Aitken, now a member of the Scottish Parliament, was a member of Glasgow District Council for many years. He knew Mr Logan as a political colleague and fellow councillor. In due course he met the pursuer. He said that Mr Logan told him that he and the pursuer had become engaged. After that he saw them as a couple and considered them to be engaged to be married. He last saw him in April 1998 when Mr Logan said that he and the pursuer were "no longer an item" and that they had separated. Robert Tomlinson, who at the material time was head of public affairs with Scottish Television, gave evidence that Mr Logan had discussed with him the fact that he was going out with the pursuer after his wife had died. At the time of Mr Logan's death he understood that he was single. I accept the evidence of all these witnesses. I thought that Jessie Johnston was a particularly impressive witness. She gave her evidence in a forthright and dispassionate manner and I feel sure that little went on in the household while she was working there that escaped her notice. If there was reason to regard the pursuer and Mr Logan as husband and wife then she would so have regarded them, but she did not.

Conclusion

In my opinion the evidence adduced by the pursuer, insofar as I accept it, falls very far short of proving her case on record and of satisfying the legal requirements, as defined in the authorities I have discussed, for constitution of marriage by cohabitation with habit and repute. Counsel for the pursuer submitted that what had been established on the evidence was the impression of a couple acting as and regarding themselves as husband and wife at the centre of an extended family and social circle. It is true that they cohabited for a considerable period, long enough indeed to satisfy the requirement in respect of duration. But cohabitation in itself does not avail the pursuer without sufficient proof of habit and repute. Counsel for the pursuer suggested that cohabitation without marriage was less likely in the case of what he described as a "lively conservative couple in their 50s". It is of course commonplace in modern society for couples to choose to live together without being married, and even on the pursuer's own account there was a significant period during which she and Mr Logan cohabited without regarding themselves as being married. I think therefore that in the case of a couple such as the pursuer and Mr Logan, no less than with any other couple, it is necessary to seek evidence of habit and repute which is general and consistent, so preponderating as to leave no substantial doubt. It appears to me that in the present case such proof is conspicuously lacking. Apart from the evidence of the pursuer and that of the relatively small body of witnesses whose evidence I have already discussed, no witness was called to give evidence that she and Mr Logan regarded each other as being married and were so regarded as others. The evidence of Barbara and David Davidson does not go so far as to support her contentions, for the reasons I have discussed. Apart from that, no other close relative of either the pursuer or Mr Logan was called to give evidence supportive of the pursuer's position. No close friend of either of them was called to give such evidence, nor was anyone connected with the Kirk Session or congregation of Glasgow Cathedral, Scottish Television, the Conservative Party, the former Glasgow District Council, any neighbour from either Westbourne Gardens or Elie or anyone connected with the numerous cultural and other associations with which Mr Logan was connected. Such evidence as was called is in my opinion entirely insufficient to satisfy the necessary requirements. Moreover, although in the circumstances there is nothing for the first and second defenders to rebut, I am in any event satisfied that Mr Logan, and probably also the pursuer, did not at any time regard themselves as being married to each other. There could be no marriage unless they had in fact the necessary matrimonial intention, and in my view they did not.

It follows from what I have said that I shall sustain the second, third and fourth pleas-in-law for the first and second defenders, repel the pleas-in-law for the pursuer and assoilzie the first and second defenders from the conclusions of the summons.