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Cite as: [2000] ScotCS 274

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OUTER HOUSE, COURT OF SESSION

OPINION OF LORD MACFADYEN

in the cause

LINDA MARY ROBERTSON or CUNNINGHAM

Pursuer;

against

NICHOLAS GEORGE CUNNINGHAM

Defender:

________________

Pursuer: Hayhow; Stuart & Stuart, W.S.

Defender: MacNair; Mowat Dean & Co., W.S.

3 November 2000

Introduction

[1] This is an action of divorce which is undefended on the merits, but defended in respect of a number of ancillary matters. The pursuer concludes (1) for decree of divorce on the ground that the marriage between the parties has broken down irretrievably by reason of the defender's behaviour, (2) for a residence order in respect of the younger child of the marriage ("M"), (3) for an order under section 14(2)(a) of the Family Law (Scotland) Act 1985 ("the 1985 Act") for the sale of the former matrimonial home, and for equal division between the parties of the net free proceeds of sale, (4) for payment of a capital sum of £500,000, (6) for payment of a periodical allowance of £1500 per month for a period of three years from the date of decree of divorce, (6) for aliment for each of the two children of the marriage at the rate of £500 per month, (9) for interdict against the defender molesting her, (11) for expenses, and (12) for an order upon the defender under section 3(1)(b) of the 1985 Act to pay the school fees and other incidental educational expenses from time to time incurred in respect of the attendance of the children at Dundee High School. I have omitted reference to the seventh, eighth and tenth conclusions, since they are of a procedural nature and are of no remaining significance at this stage of the case. The defender concludes for a property transfer order in his favour in respect of the pursuer's one half pro indiviso share in the former matrimonial home. In the event Mr Hayhow for the pursuer did not insist in the pursuer's conclusions for periodical allowance and aliment. I was informed that the parties had entered into a Minute of Agreement regulating the payment of aliment in respect of both children. Mr Macnair for the defender did not insist in the conclusion for a property transfer order, and did not resist the granting of an order for sale of the former matrimonial home, and the equal division of the net free proceeds thereof.

Divorce

[2] Since no defence was offered in respect of the conclusion for decree of divorce, it is sufficient that I record that I was satisfied, on the basis of the evidence of the pursuer and her sister, Mrs Sheila Forsyth, that the parties' marriage had broken down irretrievably by reason of the defender's behaviour. I shall therefore grant decree of divorce.

Interdict

[3] The pursuer's ninth conclusion is in the following terms:

"To interdict the defender from molesting the pursuer by abusing her verbally, by threatening her, by placing her in a state of fear and alarm or distress and by using violence towards her."

Interim interdict in those terms was granted on the motion of the pursuer on 4 February 2000.

[4] In her evidence, the pursuer described the incidents that had led her to apply for interim interdict. She referred first to a course of telephone calls by the defender, mostly on the subject of contact between him and the children, of a threatening or aggressive tone, persisted in despite her making it clear that she did not wish such communication. Secondly, she referred to difficulties that arose when the children were being dropped off after contact. The defender sought to force his way into the pursuer's house and to engage her in discussion, despite her making it clear that she did not wish him to come in and did not wish to speak to him. The pursuer referred in particular to three incidents, which occurred respectively on 15 June 1999, 16 October 1999 and 16 January 2000. These and other incidents are described in paragraph 6 of an affidavit (No. 6/23 of process) sworn by the pursuer on 1 February 2000 for the purpose of the application for interim interdict, which was incorporated into her evidence at the proof. The pursuer called the police on a number of occasions because of the defender's behaviour, and a letter from Tayside Police dated 7 January 2000 (No. 6/26 of process) confirms the dates of a number of those occasions. According to the pursuer the police were again called in January and in May 2000. The incident in May resulted in the defender being charged with breach of the peace, in respect of which charge he still awaits trial. Also in May, there was an incident when he broke a pane of glass in a door at the pursuer's house. In respect of that incident he was charged with vandalism. The pursuer said in evidence that she remained apprehensive that the defender would molest her. She pointed out that, although there had been no incidents since May, the defender had during that period been the subject of a bail condition that he would not approach her. She expressed hope but no confidence that his behaviour would change once the present proceedings were at an end.

[5] The defender did not seek in evidence to contradict the pursuer's account of his behaviour. He suggested that the behaviour in question had been out of character, but he accepted that objectively it had been "less than good". His behaviour, he suggested, was a reaction to his profound shock at the pursuer's separation from him, and at finding himself no longer living in family with her and the children. In 1999 he was under medical treatment for depression and anxiety (see No. 7/5 of process). He experienced feelings of frustration, desperation and deep hurt at not seeing and communicating with the children. Those circumstances combined with pressures in relation to his business, and in relation to his father's illness and subsequent death to bring about a state of mind in which he behaved uncharacteristically. The last-mentioned pressure was now past, the passage of time had allowed him to come to terms with being separated from the pursuer and the children, and contact with the children was now operating on a satisfactory basis. In these circumstances there was no ground for apprehension that he would revert to the sort of behaviour of which the pursuer had complained. He expressed the hope that with the conclusion of these proceedings, it would be possible to re-establish communications between him and the pursuer in the interest of the children.

[6] Mr Hayhow submitted that in the circumstances the pursuer had reasonable ground for apprehension that when the bail condition to which the defender was presently subject flew off, he would, if not interdicted from doing so, resume molesting her. He referred to Gunn v Gunn 1955 SLT (Notes) 69 and Murdoch v Murdoch 1973 SLT (Notes) 13. In Gunn Lord Guthrie said:

"The third conclusion for interdict is a most unusual one, and, in ordinary circumstances, I should be very reluctant to entertain it in an action for divorce. In the present case, however, the evidence clearly shows that the pursuer has reasonable grounds for fearing molestation at the hands of her husband, unless she receives such protection as the law can afford."

In Murdoch, which was concerned with interim interdict against molestation, the court said (at 14):

"Nothing we have said should be understood to cast any doubt upon what was said by Lord Guthrie in the wholly different circumstances of Gunn v Gunn".

Mr Hayhow accepted that these dicta supported the view that permanent interdict against molestation is a remedy that the court will be slow to grant, but submitted that the present pursuer had sufficiently cogent grounds for apprehension to make it appropriate that interdict be granted.

[7] In submitting that interdict should not be granted, Mr Macnair relied upon Gunn and Murdoch. He submitted that practice had not materially altered since the dates of those decisions, and that permanent interdict against molestation was a remedy that the court should be slow to grant. As an illustration of the sort of circumstances in which such interdict would be granted, he cited Morton v Morton 1996 GWD 22-1276. Although it was accepted that the defender had behaved badly in the past, in light of the facts that the defender had now come to terms with the breakdown of the marriage and that contact with the children was now operating satisfactorily, there was no ground for continuing apprehension that there would be further molestation. Without permanent interdict, the pursuer would have the ordinary protection of the criminal law, and other civil remedies if, contrary to current indications, the pursuer did resume the behaviour complained of. Having seen the defender in the witness box, I should, Mr Macnair submitted, find that there was no present ground for apprehension.

[8] In my opinion permanent interdict against molestation is a remedy that ought not to be granted lightly. Although the case of Gunn shows that it may be granted where there is reasonable ground for apprehension of future molestation, it also shows, and in my view Murdoch re-affirms, that it is an unusual remedy that the court will be slow to grant. I agree with Mr Macnair's submission that the practice of the court has not been relaxed in this respect. In assessing whether there is reasonable ground for apprehension of future molestation, the matter must in my view be looked at objectively, and in addition past events must be viewed in light of any relevant change of circumstances since they occurred. In the present case, if one were to look at the matter from the pursuer's subjective point of view, it might be accepted that her apprehension that the defender may revert to his former behaviour should not be labelled unreasonable. But in my view when the matter is viewed objectively, it is necessary to consider not only the defender's past behaviour, but the circumstances in which that behaviour took place, and any changes in circumstances that bear on the likelihood of repetition. The defender's behaviour in the past was plainly unacceptable, and the grant of interim interdict clearly justified. Having seen the defender, however, I accept his evidence that the break down of his marriage, and in particular the loss of contact with his children, affected him badly. I have no reason to reject his evidence that matters were made worse by other stresses in connection with his business and his father's terminal illness. These considerations seem to me to go some way towards explaining, although not excusing, his behaviour. My impression is that the defender is fully alive to how bad and how unacceptable his behaviour was. Although it might appear that his choice of language in describing his behaviour as "less than good" was an attempt to minimise the seriousness of what he did, I do not interpret it that way. It seems to me to be more a reflection of his embarrassment, now that he has returned to his senses. It would, in my view, be uncharitable to suppose that the only reason for the improvement of the defender's behaviour latterly has been the bail condition prohibiting him from approaching the pursuer. I accept the defender's evidence that with the passage of time he has become reconciled to the break down of the marriage and to the fact that the children will be resident with the pursuer. It is also in my view significant that arrangements for contact with the children appear now to be operating satisfactorily. I accept as sincere the defender's expression of hope that better relations between him and the pursuer can now be restored, if only in the interests of the children. In all these circumstances, I am not persuaded that there is as matters now stand a sufficient basis for reasonable apprehension of future molestation to justify me in granting the unusual remedy of permanent interdict.

Residence Order

[9] The pursuer seeks a residence order in respect of the younger child of the marriage, M, who was born on 10 July 1988 and is therefore now twelve years old. The pursuer and Mrs Forsyth gave evidence, which I need not rehearse in detail, about the arrangements of M's care and in support of the proposition that it is clearly in M's best interests that she should reside with the pursuer. The defender, in his evidence, accepted that that was so. There is therefore no dispute about where M should reside. It is accepted by both parties, and I find it proved, that her interests would best be served by her continuing to reside with the pursuer.

[10] The issue upon which I heard competing submissions was whether, that being so, it was appropriate for me to make a residence order to that effect. One of the parental rights that a parent has in terms of section 2(1) of the Children (Scotland) Act 1995 ("the 1995 Act"), in order to fulfil his parental responsibilities in relation to his child, is the right:

"(a) to have the child living with him or otherwise to regulate the child's residence".

By section 11(1) of the 1995 Act the court may make an order in relation to inter alia parental rights. One such order that the court may make is, in terms of section 11(2)(c), an order:

"regulating the arrangements as to -

with whom; or
if with different persons alternately or periodically, with whom during what periods,

a child under the age of sixteen years is to live (any such order being known as a 'residence order')."

Section 11(7) provides inter alia that:

"in considering whether or not to make an order under subsection (1) above and what order to make, the court -

shall regard the welfare of the child concerned as its paramount consideration and shall not make any such order unless it considers that it would be better for the child that the order be made than that none should be made at all"

[11] The pursuer's evidence was that she felt that it would be in M's best interests that there should be a residence order. She pointed to the fact that M had been present on occasions in the past when there had been argumentative and aggressive behaviour on the part of the defender in relation to contact, and had been frightened by it. She said that M had told her that the defender had said that she should be staying with him. The pursuer's own attitude to contact, as I understood her evidence, was that it was in M's best interests that it should take place. She wished to encourage M to see her father. She did not, however, think it appropriate to impose contact upon her. If M expressed unwillingness, but would not discuss the reasons for her unwillingness, she found it difficult to find means of encouraging her to go. Latterly, however, M's ability to express herself on the subject had improved. In the circumstances, the making of a residence order would let M know where she stood, and would remove the uncertainty that concerned her.

[12] The defender's position was that there should be no residence order. So far as contact was concerned, he sought no order, because he believed that satisfactory arrangements could be made without the formal intervention of the court. Communication between him and M was improving. He perceived the relationship to be a close one and M to be very open with him. He said, however, that there were matters that she asked him to keep secret between them. He said that he would never attempt to interfere unilaterally with M's residence with the pursuer. His position had never been different. If he had been understood to suggest to M that she should reside with him, that must have been a misunderstanding of the expression "staying with", which he had used in the context of overnight or more extended residential contact. He had never suggested that she should reside with him, other than for periods of contact. He said, however, that M's reaction to suggestions of residential contact was, "You know I'm not allowed to, Dad". In cross examination it was put to the defender that he had proposed that M attend boarding school. His evidence was that it was M, who had friends who attended the school in question, who had raised the matter. He had thought it his parental duty to make some inquiries of the school, and had made tentative arrangements for a visit to it. M had, however, decided that she did not want to take the matter further, and it had therefore been dropped before the date arranged for the visit. I did not have the benefit of evidence from the pursuer about that episode. The defender expressed the view that it was not be in M's best interests that there should be a formal residence order. He felt that the existence of such an order would exclude, or would be used by the pursuer to exclude him to some extent from his proper parenting role. He said that he would be very disappointed if a residence order were made.

[13] In my view it would be better for M that a residence order should be made than that there should be no such order. It is common ground between the parties that she should in fact reside with her mother, and I agree with that common view. It is also common ground between the parties that there should be contact between the defender and M, and I agree with that too. There is no application before me for a contact order in terms of section 11(2)(d) of the 1995 Act. Arrangements for contact are, according to the evidence, presently operating satisfactorily. I am therefore satisfied that it is better that the matter of contact should be left without formal regulation. That will permit the parties to adopt a flexible approach to the matter, and I express the hope that they will do so, and that the extent of the contact that the defender has with M will increase to include a suitable amount of overnight and holiday contact. I consider, however, that it is necessary to bear in mind the conflict that there has been over contact in the past. I accept the pursuer's evidence, which I understood the defender also to accept, that M was upset and frightened by that conflict. I accept the defender's assurance that he never expressed to M a wish that she reside full time with him. It may be, as he inferred, that she misunderstood references to her "staying with" him, which he meant to refer to residential contact, as referring to full residence. Be that as it may, however, I accept the pursuer's evidence that M has been in a state of some uncertainty and insecurity over the arrangements for her care. I do not regard the boarding school episode as making a material contribution to such insecurity. In the absence of any evidence from the pursuer on the point, I accept the defender's evidence about how the matter arose, and how it was dealt with. It seems to me, however, in light of all the evidence that I heard on the matter, that the making of a residence order would be in M's best interests because (i) it would put on a formal basis the arrangement which the parties are agreed, and which I hold, is best for M; (ii) it will serve to reassure M that she is to stay with her mother, and to alleviate her feelings of uncertainty and insecurity, and (iii) it will provide a secure platform for the development of contact between M and the defender. It was suggested that M might think that a residence order constituted an obstacle to more extended contact and in particular residential contact. That would, of course, be mistaken, and I wish to make it quite clear that the existence of a residence order does not stand in the way of arrangements for M to stay with the defender overnight, or for a weekend, or for more extended holiday periods. On the contrary, it seems to me that the existence of a residence order is likely to make it easier to make such arrangements, because it will provide a basis for the pursuer to encourage and reassure M. For these reasons, I shall make an order that M reside with the pursuer.

Financial Provision
(a) The Former Matrimonial Home

[14] As I have noted above, despite the defender's conclusion for a property transfer order in respect of the pursuer's interest in the former matrimonial home, it was common ground at the proof that the house should be sold and the proceeds divided equally between the pursuer and the defender. I was therefore invited to grant an order under section 14(2)(a) of the 1985 Act for sale of the house and an order for equal division of the net free proceeds between the parties. Although the pursuer's third conclusion seeks to make further provision for implement of the order for sale, it was agreed that that was not necessary at this stage. If for any reason the parties are unable to effect the sale without further intervention of the court, it will be open to them or either of them to seek a further order (see sections 14(1) and 14(2)(k)).

(b) School Fees

[15] The defender did not seek to resist the making of an order under section 3(1)(b) of the 1985 Act for payment by him of the fees incurred in connection with the attendance of both children at Dundee High School. The pursuer by her twelfth conclusion sought that in addition there should be a similar order in respect of "other incidental educational expenses". The defender's position was that such additional expenses should be shared. In the event, the pursuer expressed herself in evidence as willing to share liability for those additional expenses, and Mr Hayhow accordingly restricted his motion in that regard to one for an order for payment by the defender of one half share of extra fees charged by the school in connection with extracurricular activities such as music lessons. I shall make an order to that effect.

(c) Capital Sum

[16] The pursuer's claim for a capital sum is made under section 8(1)(a) of the 1985 Act. In terms of section 8(2) the court may make such order as is (a) justified by the principles set out in section 9 and (b) reasonable having regard to the resources of the parties. In the present case no issue arises under section 8(2)(b). It was accepted by counsel that the resources of both parties were such (they each have, over and above their interest in the matrimonial property, inherited capital of approximately £1,400,000) that any order justified by the principles set out in section 9 would be reasonable. The issue therefore comes to be simply what order is justified by such of the principles set out in section 9 as are relevant in this case.

[17] Section 9(1) provides inter alia that the principles which the court shall apply in deciding what order for financial provision, if any, to make include that:

	"(a)	the net value of the matrimonial property should be shared fairly between the parties to the marriage; [and]
	(b)	fair account should be taken of any economic advantage derived by either party from contributions by the other, and of any economic disadvantage suffered by either party in the interests of the other or of the family."

Those were the only two principles to which reference was made in the course of counsel's submissions. In applying the principle in section 9(1)(a) in the circumstances of this case it is necessary to take into consideration various further provisions contained in section 10. Section 10(1) provides that in applying the principle:

"the net value of the matrimonial property shall be taken to be shared fairly between the parties when it is shared equally or in such other proportions as are justified by special circumstances".

Section 10(6) provides that "special circumstances" may include inter alia:

"(b)

the source of the funds or assets used to acquire any of the matrimonial property where those funds or assets were not derived from the income or efforts of the parties during the marriage".

In relation to section 9(1)(b) my attention was also drawn to section 11(2), which provides as follows:

	"For the purposes of section 9(1)(b) of this Act, the court shall have regard to the extent to which -
	(a)	the economic advantages or disadvantages sustained by either party have been balanced by the economic advantages or disadvantages sustained by the other party, and
	(b)	any resulting imbalance has been or will be corrected by a sharing of the value of the matrimonial property or otherwise."

[18] The identity and value of the matrimonial property held at the relevant date by the parties or one or other of them, and the party by whom each item is presently held, were matters of agreement (see paragraph 1 of the Joint Minute, No. 19 of process, and the schedule therein referred to, No. 6/39(a) of process). It is convenient to reproduce that schedule:

	Asset	Pursuer	Defender	Total
(i)	Former matrimonial home	£150,000	£150,000	£300,000
(ii)	Holiday home		68,000	68,000
(iii)	Sun Life insurance policies		132,092	132,092
(iv)	Sun Life pension		186,642	186,642
(v)	Bank of Scotland (three accounts)		216,483	216,483
(vi)	Alliance Trust Savings PEP		61,101	61,101
(vii)	Capel-Cure Myers PEP		63,337	63,337
(viii)	Hill Samuel PEP		3,536	3,536
(ix)	Bank of Scotland (three accounts)	65,604		65,604
(x)	Bell Lawrie White PEP	144,338		144,338
(xi)	Abbey National TESSA	10,440		10,440
(xii)	Bradford and Bingley Building Society	1,469		1,469
(xiii)	Golf Gti motor car	5,500		5,500
(xiv)	MOCO shares	12,705	3,689	16,394
(xv)	TESSA		10,440	10,440
	Totals	£390,056	£895,320	£1,285,376

[19] In addition, the parties were agreed that certain contents of the matrimonial home and of the holiday home were matrimonial property (see paragraphs 2 and 3 of the Joint Minute No. 19 of process). They were further agreed that that property should be divided between them in the manner set out in a schedule, No. 21 of process, and that such division was fair (see paragraph 3 of the Second Joint Minute, No. 22 of process). Nothing more need therefore be said about those items of matrimonial property. For the sake of simplicity they can be left out of the discussion of the appropriate amount of the capital sum to be paid.

[20] I was informed that the pursuer has received from the defender a payment of £25,000 to account of her entitlement to a capital sum. Account requires to be taken of that payment in determining the amount of any decree for payment of a capital sum.

[21] Mr Hayhow's primary submission for the pursuer was that there should be equal division of the matrimonial property. On that basis he sought a capital sum of £227,632, calculated as follows:

Net value of the matrimonial property	£1,285,376
One half share thereof	£642,688
Less: the matrimonial property presently held by the pursuer, including her one half share of the matrimonial home
	390,056
Payment required to equalise the parties' shares	252,632
Less: payment to account	25,000
Capital sum to be awarded	£227,632

[22] In arguing that equal division was in the circumstances fair, Mr Hayhow recognised that an issue did arise as to whether there were special circumstances of the sort contemplated in section 10(6)(b). Parts of the agreed matrimonial property derived from inheritance. On the defender's side it was necessary to consider his inheritance from his grandmother, Mrs Rettie. That had comprised the following items:

Cash	£138,465
Less: inheritance tax	33,825	£104,640
House at Albany Road, Dundee, subsequently sold for		68,472
Proceeds of insurance policy		40,988
Total		£214,100

That inheritance, according to the defender's evidence, was now represented in part by (i) the holiday home and (ii) to the extent of approximately £100,000 the matrimonial home. On the pursuer's side, Mr Hayhow relied first on the contents of No. 6/57 of process, which set out various sums inherited by the pursuer that had been converted into matrimonial property. The amounts in question totalled approximately £50,000. Secondly he relied on the extent to which the pursuer had used the unearned income which she derived from inherited funds to meet ordinary matrimonial expenditure. Over the period from 1986 to 1998 the total of such expenditure brought out in No. 6/38(1) of process (and agreed - see paragraph 2 of the Second Joint Minute, No. 22 of process) was £200,419. There was also some vague evidence from the pursuer about such expenditure in earlier years not covered by the agreed document. Although Mr Hayhow accepted that there was general evidence to the effect that the defender had also expended unearned income derived from inherited funds on matrimonial expenditure, he pointed out that the amount had been neither calculated nor vouched. He submitted that on balance the pursuer's contribution of inherited funds and the income derived therefrom to matrimonial purposes was sufficient to balance any such contribution by the defender, so that there was no ground for finding that there were special circumstances that justified unequal division of the matrimonial property in a way that favoured the defender.

[23] Mr Macnair submitted that there were special circumstances of the sort contemplated in section 10(6)(b) that made it fair to share the matrimonial property unequally. He submitted that the two considerations founded on by Mr Hayhow should be examined separately. So far as the expenditure of unearned income derived from inherited funds was concerned, the parties' positions were similar. Each of them resorted to such income for ordinary matrimonial expenditure. Since each had inherited capital of about £1.4 million, their unearned income was likely to be approximately equal. So far as the defender was concerned, although there was no detailed computation comparable with No. 6/38(1) of process, his evidence was that his unearned income was either expended for ordinary matrimonial purposes, or was included in the investments and bank balances included in the agreed matrimonial property. The proper conclusion, accordingly, was that over the years the parties had probably committed unearned income from inherited funds to matrimonial expenditure to a broadly equal extent. The figure brought out in No. 6/38(1) of process therefore ought not to be brought into account when considering the extent to which the agreed matrimonial property was derived from inheritance. Turning to that question, Mr Macnair's submission was that the figure of inherited capital belonging to the pursuer that had been converted into matrimonial property was the £50,000 brought out in No. 6/57 of process. On the other hand, the defender had converted into matrimonial property the proceeds of sale of the Albany Road property, which had largely been deployed to purchase the holiday home in Boat of Garten. That, according to the defender's evidence, had been in accordance with his grandmother's wishes. Holidays in that area had been a family tradition, and she had wished the defender to carry that tradition on by using his inheritance from her to buy a holiday home there. In addition, the inheritance from Mrs Rettie had provided part of the funds for the purchase of the matrimonial home. Of the purchase price of £219,500, approximately £100,000 had come from Mrs Rettie's estate, with the remainder funded, after a considerable delay, by the sale of the previous matrimonial home. That use of his inheritance from Mrs Rettie to facilitate the purchase of a larger family home was also, according to the defender, in accordance with her wishes. The balance of his inheritance from his grandmother's estate amounted to roughly £50,000, and was now part of the funds which were included in the agreed matrimonial property. To the extent of £50,000, therefore, those funds could be regarded as offsetting the £50,000 of inherited capital brought into the matrimonial property by the pursuer. On that basis Mr Macnair's primary submission was that, in the division of the matrimonial property, the pursuer should receive no share of the value attributable to the holiday home, and one quarter only of the value attributable to the former matrimonial home. On that basis, her share of the matrimonial property would be £533,699, which meant that, after allowing for the matrimonial property already in her name, and the payment to account, the capital sum awarded should be only £118,632. In the alternative, Mr Macnair submitted a calculation in which there were set against the matrimonial property in each party's name the sums that they had respectively contributed from inherited funds. That calculation supported a capital sum of £145,567.

[24] In my view Mr Macnair was well founded in his submission that the sharing of matrimonial property ought not to be affected by the extent to which the parties had in the past expended for matrimonial purposes unearned income derived from inherited funds. Although the pursuer put in evidence a precise calculation of the sums so contributed by her over the years from 1986, and the defender provided no equivalent calculation, I accept the defender's evidence that his inherited income was either spent in a similar way or resulted in the creation of a matrimonial asset in his name. Since the parties' inherited funds were agreed to be of roughly equal amounts, it seems to me to follow that their contribution to family expenditure from unearned income derived from such sources should be treated as broadly equal. I therefore do not consider that Mr Hayhow was justified in bringing the pursuer's expenditure of unearned income into account to counterbalance the inherited capital used by the defender to acquire matrimonial property.

[25] It therefore seems to me that on the figures discussed in evidence, the pursuer used inherited capital to fund matrimonial property to the extent vouched in No. 6/57 of process, namely approximately £50,000, whereas the defender used inherited capital to fund matrimonial property to the extent of the Boat of Garten property, plus a contribution of about £100,000 to the purchase price of the matrimonial home, plus an unidentified contribution of roughly £50,000 to the matrimonial funds in his hands. I take the view on the evidence which I heard that it is reasonable to treat the whole of the value of the Boat of Garten property as falling to the defender's share of the matrimonial property. I do not consider, however, that it would be appropriate to allocate the pursuer only one quarter share of the value of the matrimonial home. Money used to purchase the matrimonial home is, in my view, devoted in a particularly clear way to matrimonial purposes, and the source of the funds so used is in my view less important than it would be in the case of other types of matrimonial property. In my view the whole value of the former matrimonial home ought to be treated as equally divisible, notwithstanding the fact that its purchase was financed in part from funds derived by inheritance from Mrs Rettie. On the other hand, I do consider that it is right to recognise that to the extent of £50,000 the matrimonial property in the hands of the pursuer is in reality inherited capital which has merely undergone a change in form. That is, however, balanced by the remainder of the defender's inheritance from his grandmother. I therefore consider (1) that the whole value of the former matrimonial home should be included in that part of the matrimonial property that is divided equally between the parties, but (2) that before equal division of the remainder of the property there should be deducted (a) from the matrimonial property in the hands of the pursuer the sum of £50,000, and (b) from the matrimonial property in the hands of the defender (i) the agreed value of the Boat of Garten house, namely £68,000, and (ii) the sum of £50,000 to represent the remainder of the funds inherited from Mrs Rettie. The appropriate calculation is therefore in my view as follows:

	Pursuer	Defender	Total
Total net value of matrimonial property, including former matrimonial home	£390,056	£895,320	£1,285,376
Less: Holiday home		68,000	68,000
		£827,320	1,217,376
Less: Balance of inheritance from Mrs Rettie
Less: Balance of inheritance from Mrs Rettie		50,000	50,000
		£777,320	1,167,376
Less: £50,000 per No. 6/57 of process	50,000		50,000
	£340,056		£1,117,376

In order to effect equal division of the last mentioned total, a payment by the defender to the pursuer of £218,632 would be required. When allowance is made for the payment to account, the amount remaining to be paid falls to £193,632.

[26] Mr Hayhow advanced a further argument based on section 9(1)(b). He did not thereby seek to obtain for the pursuer a capital sum greater than that which he argued for on the basis of section 9(1)(a), but, as I understood him, he sought to bring the additional argument into account to resist any reduction of the capital sum below the figure of £227,632. The argument was founded on the evidence that the pursuer had interrupted her career as a paediatric physiotherapist for a period of some six years when the children were young, in order to care for them. She had at that stage withdrawn from her superannuation scheme. When she returned to work, she did so on a part-time basis, working only in school term time. She had thus suffered economic disadvantage in the interest of the family. It did not seem to me that the pursuer had a strong case under section 9(1)(b), and that was perhaps reflected in the subordinate role which Mr Hayhow gave to that argument. It seemed to me that while the pursuer's earnings were diminished it was difficult to say that that resulted in economic disadvantage to the pursuer in particular. The family income was diminished, but it was not clear on the evidence that it was the pursuer as an individual rather than the family as a whole on whom that diminution in income bore. There was perhaps a stronger point to make to the effect that if the pursuer had not taken time out of her career as she did, she would now have been in a more advanced position in her profession than she is. The evidence did not, however, enable any quantification of that point to be made. Mr Macnair suggested moreover that any imbalance in advantage or disadvantage would be corrected by the sharing of matrimonial property (section 11(2)). I take the view that the pursuer has not demonstrated that she suffered any quantifiable economic disadvantage in the interests of the family.

[27] In all the circumstances, I consider that the principle set out in section 9(1)(a) of the 1985 Act justifies an order for payment by the defender to the pursuer of a capital sum, which I shall round up to £195,000.

Summary

[28] I am accordingly minded to -

sustain the pursuer's first plea-in-law and grant decree of divorce of the defender from the pursuer in respect that the marriage has broken down irretrievably by reason of the defender's behaviour;
sustain the defender's second plea-in-law, repel the pursuer's seventh plea-in-law and refuse interdict in terms of the ninth conclusion of the summons;
sustain the pursuer's second plea-in-law, repel the defender's first plea-in-law and grant a residence order providing that M reside with the pursuer;
sustain the pursuer's third plea-in-law and grant an order for sale of the heritable property known as and forming 139 Strathern Road, Broughty Ferry, Dundee, and an order that the net free proceeds of such sale be divided equally between the pursuer and the defender;
sustain the pursuer's ninth plea-in-law to the extent of making an order for payment by the defender of (a) the ordinary tuition fees payable in respect of the attendance of the two children of the marriage at Dundee High School, and (b) one half share of all additional fees in respect of music tuition and other extra-curricular activities arising in connection with the attendance of the said children at the said school; and
sustain in part the pursuer's fourth plea-in-law, and grant decree for payment by the defender to the pursuer of a capital sum of £195,000.

[29] Mr Macnair indicated that while a capital sum of the level for which he contended could be paid immediately, if I were minded to make an make an award of more than £150,000, the defender might require some time to pay part of the sum awarded. He therefore invited me, if my award was to exceed that figure, to put the case out By Order to enable submissions to be made about the allowance of time for payment. Since I propose to make an award of £195,000, I shall accede to that request, and put the case out By Order before granting any decree. I shall reserve the question of expenses.