Scottish Court of Session Decisions

[1] This is an action at the instance of a wife against her husband, seeking divorce on the ground that the marriage has broken down irretrievably. By interlocutor of 5 February 1998, the Sheriff of Lothian and Borders at Edinburgh sustained the pursuer's first plea-in-law, and granted decree of divorce, having found that the marriage had broken down irretrievably. By a subsequent interlocutor of 1 May 1998, the Sheriff dealt with certain other matters which had been reserved. The defender and appellant appealed to the Sheriff Principal of Lothian and Borders against these two interlocutors. By interlocutor of 28 September 1988 the Sheriff Principal refused the appeal, adhered to the two interlocutors and found the appellant liable to the respondent in the expenses of the appeal. The defender and appellant now appeals against that interlocutor of the Sheriff Principal. In presenting the appeal to this court the defender represented himself, as he had done at proof and in the hearing before the Sheriff Principal.

[2] The parties were married on 26 October 1974. There are two daughters of the marriage, born in 1976 and 1979. Until 24 April 1996, the parties lived together, with their daughters, but on that date the pursuer left the defender and the parties have not lived together since then. The sheriff has made a substantial number of findings in relation to the history of the marriage; and by findings 25 and 26 has held that the behaviour of the defender since the date of the marriage has been such that the pursuer cannot now be reasonably expected to cohabit with him, and that there is no reasonable prospect of a reconciliation between the parties. Put shortly, the main issue in the appeal is whether there was a proper basis for these findings, and the related finding in law that the marriage had broken down irretrievably. While the craves in the initial writ, and the sheriff's interlocutor of 1 May 1998, cover a number of other matters, we are concerned with only two of these: decree for payment by the defender to the pursuer of a capital sum of £950, and the defender being found liable to the pursuer in expenses. We shall return to these matters after considering the main question in the appeal.

[3] In presenting the appeal, the defender and appellant made reference to a 37 page document, in which he had set out the basis of his appeal from the Sheriff to the Sheriff Principal. More particularly, however, his Grounds of Appeal to this court were provided to us in a relatively brief written document which he used and expanded upon in making his oral submissions. We would express our gratitude to him for the courtesy and restraint with which he presented these submissions.

[4] Before coming to more detailed submissions, the defender and appellant advanced a broader contention, to the effect that a defender in his position was not given the level playing field which he had been entitled to expect. Basic principles of justice and conscience were effectively violated, so that there was no true equality between the two spouses, and indeed an effective shifting of the burden of proof. He emphasised the importance of the integrity of a family, which could only be properly protected if the rights of individuals were in some measure restricted: any "right" of an individual to leave a marriage must be balanced against protection of marriage as an institution. Moreover, the seriousness of bringing a marriage to an end was all the greater in a case such as this, where the defender was a minister of religion, for whom the consequences of divorce could be nearly as bad as death, with loss of employment and grave personal depression. The prejudice to a defender, particularly in such circumstances, was described by him as "endemic" in legal provisions which made divorce easily available to a spouse who wanted it. It appeared that the situation had been reached where one spouse who wanted to leave a marriage could do so: if such a spouse said the marriage was over, it was, and it would be pointless to attempt defence. The burden of proof had effectively passed to the defender. A defender was thus at a real disadvantage, and the matter was not being disposed of on a level playing field.

[5] We have thought it right to set out this background to the more specific contentions advanced by the defender and appellant. And we can appreciate that in relation to the dissolution of marriage, it may well seem to a spouse that the law has made it "too easy" for divorce to be granted, and too difficult for a defender to uphold the institution of marriage, and the particular marriage, as he would wish. But it is not for the courts to resolve, or indeed comment upon, the problem which faces the legislature in enacting laws which regulate divorce. We must proceed upon the statutory basis provided by Parliament, and consider whether the Sheriff and Sheriff Principal have done so in dealing with this particular case.

[6] Particularly because of the general misgivings voiced by the defender and appellant, it is appropriate to set out some of the statutory provisions which are in point. Section 1(1) of the Divorce (Scotland) Act 1976 provides that:

Section 1(2) provides inter alia that the irretrievable breakdown of a marriage shall, subject to the following provisions of the Act, be taken to be established in an action for divorce if:

[7] It is thus for the pursuer to establish the irretrievable breakdown of the marriage, and in particular to do so in this case by establishing the matters set out in section 1(2)(b). Moreover, section 2(1) of the 1976 Act provides that at any time before granting decree in an action for divorce, if it appears to the court that there is a reasonable prospect of a reconciliation between the parties, it shall continue, or further continue the action for such period as it thinks proper to enable attempts to be made to effect such a reconciliation. In addition to the matters raised by section 1, the Sheriff accordingly required to consider this matter in terms of section 2.

[8] Certain evidential provisions are to be noted. Section 1(6) provides that in an action for divorce the standard of proof required to establish the ground of the action is to be on balance of probability. As a result of section 1 of the Civil Evidence (Scotland) Act 1988, corroboration is no longer required in civil actions, including actions of divorce. But section 8 of that Act makes certain safeguarding provisions. In terms of subsection (1), in any action of divorce, no decree or judgment in favour of the pursuer is to be pronounced until the grounds of action have been established by evidence. And in terms of subsection (3), that evidence is to consist of or include evidence other than that of a party to the marriage. Any question as to the sufficiency of the evidence in the present case will accordingly have to be considered and dealt with in accordance with these provisions.

[9] With that background we turn to the defender and appellant's Grounds of Appeal. In their written form, these are set out as three Grounds, each with subdivisions. For convenience we will follow this layout, referring to the various heads as 1(a) to (i), 2(a) to (d) and 3(a) to (g). Nonetheless, the submissions advanced by the defender and appellant understandably took a somewhat broader form, and are not to be rigidly compartmentalised in this way.

[10] Heads 1 (a) to 1(d) of Mr. Taylor's grounds of appeal relate to a matter which, according to the Sheriff himself, caused him considerable difficulty. The pursuer in her pleadings makes a number of broad averments which show the essence of her case, and which it is worth repeating here:

In evidence, the pursuer voiced a number of complaints, evidently important to her, which are not specifically raised in the pleadings, and some of which can be seen as running beyond the scope even of the broad averments which we have quoted. It is this lack of correlation between the averments and the evidence which caused the Sheriff difficulty - compounded by the fact that the difficulty was not referred to by either side in final submissions. The Sheriff concluded that it was appropriate for him to making findings-in-fact on the basis of the evidence, although this bore little resemblance to the averments. We do not repeat here all the findings which lead up to and underlie findings 25 and 26. Most of the detailed findings reflect the broad averment that the defender devoted "his whole self and existence" to his work latterly as a Minister of the Haven Christian Fellowship Church, and what one may call the negative effect of this on his life and behaviour at home. As examples one may note that he became more strict in his attitude "refusing to go to art galleries or on picnics"; that the pursuer asked the defender to spend one evening a week with her, but he was reluctant to do so; that he expected the pursuer "to do everything for him" and that when she asked the defender if she could "have some time off" he "refused". There are findings that he tried to control what she listened to on the radio and watched on television; that when she wanted to go out to work to help to provide for the family, he objected "saying he did not want her mixing in the world with other men"; that when she wanted to undertake a course at the Open University he objected to this "on the ground that he did not want her exposed to new ideas and mixing with other people"; and that she became unhappy in the marriage about five years before the separation, very unhappy by about 1994 and depressed before the separation, having palpitations and feeling extremely tired. There are further findings as to subsequent behaviour which underlie the finding that there is no reasonable prospect of reconciliation.

[11] In submitting that the Sheriff had erred in proceeding to make findings on matters which were unaverred, Mr. Taylor relied upon the essential nature and function of written pleadings, as the measure of what a pursuer may try to establish by evidence, and as giving fair notice to a defender of what will (and thus will not) be the case made against him. Mr. Taylor accepted that he had not taken objection to the line of evidence, when unaverred matters were embarked upon; but he drew attention to the fact that he was acting for himself without legal representation, and submitted that the Sheriff himself should have prevented the leading of what was essentially inadmissible evidence. He drew attention to an observation made by Sheriff Macphail (Evidence, paragraph 8.40) to the effect that the rule now generally observed is that

And he further submitted that he had been prejudiced by the admission of unaverred evidence, in particular by being disabled from leading evidence in rebuttal, on a matter relating to an alleged back problem suffered by the pursuer.

[12] We are not persuaded that Sheriff Macphail's observation is in point: if a pursuer seeks to rely upon a new ground of liability, different from that set out in the pleadings, it may well be seen as appropriate to limit him to the averred grounds. It does not follow that evidence of factual matters, not averred or not specifically averred in the pleadings, will be excluded from consideration if they bear upon legal issues which have been pled. And while a court will try to help a party who lacks legal experience or representation, we are not persuaded that it was necessary, or perhaps even proper, for the Sheriff at his own hand to decide that such evidence should be excluded. Even where a party is representing himself, the absence of objection, and consequent admission of evidence, will normally mean that the evidence can be taken into account. And we would observe that where the detailed history of a marriage is in issue, it may well be both difficult to know how much detail should be put on record, and also acceptable, where matters must be within the knowledge of both parties, to allow a full picture to be given, if there is no objection. While we understand the Sheriff's unease, we are satisfied that the decision to which he came upon this matter was sound, and that the Sheriff Principal was right in upholding the Sheriff in this respect.

[13] Head 1(e) of the Grounds of Appeal is to the effect that there was unfairness in the attitude of the court. This assertion is based upon the fact that when Mr. Taylor raised an issue that was not averred, there was an immediate intervention and objection from the pursuer's solicitor, which the Sheriff sustained. This is said to demonstrate a lack of fairness and a lack of even-handedness. That view is in our opinion without justification.

[14] Dealing with Grounds 1(h) and (i), Mr. Taylor submitted that most of the complaints about his behaviour which had been made by the pursuer in evidence were not merely unaverred, but were uncorroborated by evidence from other witnesses as the normal rules of evidence required that they should be. As we have noted, when setting out the statutory provisions, corroboration as such is not a requirement in actions of divorce; and we do not consider that the requirements of section 8(3) are properly to be understood as equivalent to a requirement of corroboration. The appellant relied upon a comment in David Field, Evidence 2nd edition, at page 166, to the effect that "the reason for retaining the corroboration rule in consistorial cases stems from the court's reluctance to terminate a marriage except on the strongest proven ground". It is not clear to us what the supposed basis for this statement is. Even if the provisions of section 8(3) could properly be described as a retention of the corroboration rule, they are a requirement made by Parliament, and cannot be said to stem from any attitude on the part of the courts. Subsection (1) of course shows that divorce will not be granted except on the basis of evidence; and section 8(3) provides a further safeguard against collusion. But that subsection must, in our opinion, be interpreted on its own terms: reference to the familiar doctrine of corroboration could easily have been made, if Parliament had intended that that doctrine should be applied. It will always be a matter of circumstances, when corroboration is not required by law, whether the court will feel able to proceed upon uncorroborated evidence if potential witnesses can be identified who might have corroborated or contradicted the pursuer's account. But section 8(3) does not require that all possible witnesses be brought to support the pursuer's account. And the question in this case appears to us to be whether there was evidence other than the pursuer's which can be regarded as satisfying the requirements of section 8(3).

[15] The Sheriff says that the findings-in-fact which he made were dependent "almost entirely upon accepting the evidence of the pursuer". He observes that it is "certainly not the case that every allegation made by the pursuer is corroborated by another witness" - although we would note that even if corroboration were required to establish the pursuer's case, that is a very different matter from requiring corroboration of particular allegations. At all events, the Sheriff's conclusion was that there was sufficient evidence, arising from the evidence of the pursuer's mother Mrs. Garriock and one of the daughters of the marriage, Sharon, to establish, along with the evidence of the pursuer, a pattern of behaviour on the part of the defender. He describes their evidence as satisfactory, says that he has no reason to disbelieve it and concludes by saying that on significant matters, it adequately corroborates the evidence of the pursuer. And while this recourse to the language of corroboration is not strictly necessary, examination of Mrs. Garriock's evidence, covering Mr. Taylor's behaviour and its consequences upon the pursuer, shows that it is indeed corroborative of certain specific matters and of the overall pattern and its consequences. We are satisfied that it meets the requirements of section 8(3). While Sharon Taylor's evidence is naturally concerned more with her father's attitude to herself and her sister, it is also consistent with, and in no way contradictory of, the account given by her mother and grandmother, and she said that Mr. Taylor's treatment of her mother was the same as his treatment of her. In our opinion, the requirements of section 8(3) were met, and while no doubt other witnesses might have been led by either side, who might have substantiated or contradicted the evidence of these witnesses, this is not a case where we see absence of evidence as suggesting that the actual evidence should be regarded as unreliable, merely because it came from other family members. The courts are well aware of the risks of exaggeration or bias on the part of family members; but it is also to be observed that they are also, very often, the very people best placed to speak to behaviour between spouses.

[16] Before coming to the matter which Mr. Taylor described as the very heart of the case, it is convenient to deal with three particular matters. Ground 2(c) is concerned with the lapse of time between June 1997, when proof was heard, and February 1998, when the decision was issued. Without claiming any specific prejudice, Mr. Taylor submitted that the benefit to the Sheriff of having seen the witnesses was reduced by this delay. But the Sheriff has plainly treated this as an anxious case, and given very careful consideration to the evidence which he has heard. We are not persuaded that there is any substance in this Ground of Appeal. Ground 2(b) relates to a tape recording of the pursuer, which Mr. Taylor wished to play. The matter arose at the point during proof where Mr. Taylor was about to cross-examine the pursuer. Putting matters shortly, the Sheriff told him that he could put it to his wife that she had said particular things, and that if she did not deny it, it was pointless coming up with the tape, but that if she did deny it the position would have to be reconsidered. In the event, there was no real follow-up to this. We shall return to Mr. Taylor's view that the content of the tape was significant. But we can see no error in the approach adopted by the Sheriff, or his explanation to the pursuer of how the matter should be handled. Ground 2(d) was to the effect that the Sheriff was wrong in allowing information derived from leading questions to be the basis of findings-in-fact. While the matter is expressed generally, Mr. Taylor concentrated on one example, a question to the pursuer as to whether Mr. Taylor regarded her as a sinner. While the question can perhaps be regarded as suggestive, or leading, the pursuer's reply was a specific one as to particular things that Mr. Taylor had said. We are satisfied that the Sheriff was entitled to take the answer into account, and that it was not necessarily to be regarded as of no value, merely because of the form of the question.

[17] We come therefore to "the heart of the case". This is raised at Grounds of Appeal 1(f) and (g), but is closely related to Ground 2(a), so that it is convenient to deal with these three heads together. The contention advanced by Mr. Taylor is that the Sheriff wrongly refused to allow him to pursuer a line of cross-examination of the pursuer relating to her religious beliefs, and that he was materially prejudiced by this. We shall come back to the question of just what the Sheriff excluded, and why. We consider first the various ways in which Mr. Taylor contends that his wife's religious beliefs were in point.

[18] First, he points out that the question of whether the pursuer can reasonably be expected to cohabit with her husband depends not upon whether a hypothetical reasonable person could be expected to live with him, but upon the question of whether she personally could reasonably be expected to do so. To answer that question, one requires to consider not only his behaviour, but her whole character, lifestyle and beliefs. People are what they believe, and the impact upon her of his way of life and behaviour can only be assessed if one knows whether she continued to affirm the faith which they originally shared. Behaviour which might be intolerable to some people might not be so in the context of people with shared values, habits and faith. Reference was made to Ash v Ash (1972) Fam. 135 and Baretdji v. Baretdji 1985 S.L.T. 126, which was said to be closely comparable to the present case. While we would not ourselves express matters as they were expressed in Ash, we do not think that there is any real dispute as to the need to consider what can reasonably be expected in relation to cohabitation in the particular context of a pursuer's likely reaction to particular behaviour, as well as the reaction spoken to by that pursuer in evidence.

[19] Secondly, the point can be seen as one going to credibility: as we understood Mr. Taylor's submissions, he found it incredible, and wished to persuade the Sheriff that it was incredible, that a person with the pursuer's known prior beliefs and lifestyle would either find his behaviour intolerable or, if there were problems, seek divorce rather than persist in trying to achieve reconciliation, perhaps after a period of separation. Her evidence to the contrary was not to be believed, and he should have been allowed to press the matter on this basis.

[20] Thirdly, since one could not, or could not easily, accept that the cause of any breakdown in the marriage lay in the effect upon the pursuer of Mr. Taylor's behaviour, the explanation for any breakdown, or for the pursuer's claim that there was breakdown, must be found elsewhere. As Mr. Taylor contends in terms of Ground of Appeal 2(a), he believes that the pursuer has brought the action because she has established a relationship with another man, this being the real reason for the breakdown of the marriage. Given the nature of her character, faith and public teaching the only reasonable explanation for her actions is that another person was involved.

[21] Fourthly, on the basis that the Sheriff's decision could not stand because of these or other errors, and that the Sheriff Principal had erred in upholding the Sheriff, Mr. Taylor in effect made direct submissions to this court to the effect that having regard to the pursuer's beliefs, a finding that she could not reasonably be expected to cohabit with him was not justified, and also that the reason for any breakdown lay not in his behaviour, but in her relationship with another man.

[22] Underlying all these contentions appears to have been the more directly religious question, as to the Christian faith being based on the principle of forgiveness, so that (as Mr. Taylor put it in the document which he submitted to the Sheriff Principal) "for someone to affirm that they are a Christian and not to be willing to forgive would almost be a contradiction in terms." This issue perhaps relates more directly to the question of possible reconciliation, and section 2 of the 1976 Act, than to the question of whether Mr. Taylor's behaviour was such that the pursuer could not reasonably be expected to cohabit with him. As the Sheriff says, when dealing with section 2, it is clear that the defender has a sincere Christian belief and that that belief leads him to the view that, whatever differences there may be between his wife and himself, these should be capable of being determined by two Christian people. The Sheriff goes on to say that it is not for him to go into the question of the truth of any such belief, and that no temporal court of law can determine the truth of any religious belief, and should not attempt to do so.

[23] The limits imposed by the Sheriff upon cross-examination in relation to religious belief must be considered in the context which we have described. So far as the question of the "other man" providing an alternative explanation for breakdown or the bringing of the action is concerned, the pursuer was recalled for further cross-examination after their daughter had given evidence, and there is quite simply no evidence of any significant relationship. Early in cross-examination, Mr. Taylor asked some very long questions dealing with the religious context of the parties' marriage. These contain substantial expressions of his own view of matters, to which the pursuer responded with hers. After a substantial exposition of his own attitude as he saw it (Notes of Evidence page 56) Mr. Taylor obtained confirmation from the pursuer, at page 57, that the pursuer accepted that the word of God was their guide to how they lived their lives and that she still maintained her faith in God. And while she agreed that God could help people to change, she said that she did not now believe that God could change Mr. Taylor. Further questions in this connection were asked without any intervention from the Sheriff. The Sheriff thereafter pointed out to Mr. Taylor that he had been making long statements and that the purpose of cross-examination was to allow him to put questions. Only when Mr. Taylor, under reference to a book, embarked upon enquiry as to the nature of a "spiritual stronghold" did the Sheriff intervene to point out that he could only deal with the law and not with any spiritual law. At page 67 he expressly refrains from stopping cross-examination. The Sheriff tries to get Mr. Taylor to stick to questions, despite his own doubts as to their relevance. Only at page 73, where Mr. Taylor asks the pursuer "Do you believe that you can forgive me?" and receives the reply "It's not an issue of forgiveness" does the Sheriff remind Mr. Taylor that the court cannot make a ruling on spiritual or religious matters and can only deal with divorce as is laid down in the 1976 Act. He points out what the issues are and says "I must insist that you confine your questioning to matters that are properly relevant to that and not enter into religious or spiritual disputes." In response to Mr. Taylor's final question, the pursuer confirmed that she did not believe that God could heal their marriage, a matter which Mr. Taylor regarded as contradictory of what she had said as to her principles and beliefs.

[24] In these circumstances, it appears to us that Mr. Taylor was permitted by the Sheriff to cross-examine the pursuer and to obtain from her evidence not only as to her specific belief that their marriage could not be healed, but also as to her general Christian beliefs. He was able to put to her the contradiction which he saw between the former and the latter. And he was of course free to make submissions thereafter as to the significance of her general beliefs in the court's assessment of matters on the lines which we have already described. In so far as limits were placed upon his cross-examination, it appears to us that they did not prevent Mr. Taylor from asking questions which were designed to show the pursuer's own lifestyle, character and beliefs. What the Sheriff refused to allow was enquiry into matters which the court could not resolve, relating to spiritual truth. It can of course be difficult to draw precise boundary lines in an area such as this. But we are satisfied that the causes of breakdown, the reasonable possibility of cohabitation and the likelihood of reconciliation are not matters which can be reduced to issues of logic, or some supposedly inevitable consistency between fundamental religious beliefs and what people can or will do amidst the stresses and tensions of actual behaviour within an actual marriage. We are not persuaded that the Sheriff imposed any wrong limitation, or that Mr. Taylor was prejudiced by such limitation as was imposed, or that the Sheriff erred in any way in finding the pursuer credible and preferring her evidence to that of the defender.

[25] In the whole circumstances, therefore, the defender and appellant's Grounds of Appeal under heads 1 and 2, relating to the merits of the divorce, are not established, and the appeal in that respect is refused.

[26] The various heads contained within Ground of Appeal 3 relate either to the question of financial provision or to the award of expenses. As regards the former, the Sheriff awarded a capital sum of £950 in favour of the pursuer. It is not necessary to go into the underlying details: as the Sheriff points out, that figure exceeded the figure of £750, which was all that had been sought on behalf of the pursuer. We are satisfied that the figure should, on that basis, be reduced to £750. While there are possible arguments for lower figures, these were not expanded upon in this appeal by Mr. Taylor, and we are satisfied that an award of £750 is, in all the circumstances, appropriate.

[27] As regards expenses, it is apparent that these were dealt with without Mr. Taylor having the opportunity to argue against the award which was made against him. The circumstances in which this occurred, and in which he was absent when the matter was dealt with, are somewhat complicated, and indeed doubtful. However, we are satisfied that it would not be consistent with justice simply to leave the award standing in those circumstances, without reconsideration by this court. Mr. Taylor submitted to us that there should be no expenses due to or by either party, or that the expenses should at least be cut back in some way. There had been problems for him in coping with matters at proof, in the absence of legal assistance and in particular with matters going beyond what he had foreseen in the light of the record. Similarly, in relation to the Notes of Evidence, he had had substantial problems. We are not, however, persuaded that viewing matters as a whole this is a case in which there is any sound reason, in relation to the expenses of the proceedings before the Sheriff, for refusing an award of expenses to the pursuer, as the successful party. In the event, therefore, we are satisfied that the Sheriff's decision on expenses should not be disturbed. As regards the expenses of the appeal before the Sheriff Principal, parties were agreed that expenses should follow success. In the whole circumstances, the appeal on expenses, like the appeal on the merits fails, and the only alteration to the interlocutors appealed against is the reduction of the figure of £950 to one of £750 by way of capital sum. Having regard to the need to bring that matter to appeal, we are of opinion that the appropriate course in regard to expenses in the Court of Session is for us to make no award to or by either party.