Scottish Court of Session Decisions

Introduction

[1] This action seeks declarator of marriage by cohabitation with habit and repute. Interdict and interim interdict against the first defender as executor of the late John MacGregor (commonly known as Ian) was also sought. The terms of that interdict were appropriate for an interdict ad interim but would no longer be appropriate after the decision on the matter of declarator. The pursuer and Ian MacGregor cohabited from about 1974 in houses of which the pursuer was the tenant until 1991 when the house in which they then lived was purchased. Neither party was at first free to marry and they lived in adultery. The pursuer divorced her husband John Devlin on 31 May 1977. Mr MacGregor was divorced on 1 April 1982. The pursuer now seeks a declarator that she was married to Mr MacGregor from 1 April 1982.

[2] Although the pursuer obtained legal aid on a certificate dated 2/6/97 under the name Jean Devlin it is to be noted that she designs herself in the instance of the summons as MacGregor. That summons appears to have been served in about September 1998 along with the interim interdict above mentioned. Mr MacGregor died on 24 January 1997.

[3] The defenders are the sons and only children of Mr MacGregor. The first defender as executor and as an individual was the only compearing defender. Prior to the proof the evidence of Carol-Ann MacGregor or James was obtained on Commission and lodged. The proof before me lasted seven days and the pursuer called twelve of her fourteen intimated witnesses. The defender called ten of his thirteen intimated witnesses.

The Law

[4] I adopt the approach of Lord Nimmo Smith in Ackerman v Blackburn, 18 January 2000 (and Lord Macfadyen in Vosilius v Vosilius 2000 SCLR 679) in adopting the passage from Clive, Husband and Wife (4^th ed.) para.05.025 as an accurate summary of the law. It reads:

[5] I note however that Lord Nimmo Smith went on to review the authorities more extensively in Ackerman, in particular in relation to in relation to the matter of proof of the habit and repute necessary for the constitution of marriage and also the matter of whether the defender had rebutted any presumption of tacit consent to marriage arising from the evidence. In this case that would involve his proving that one or both of the pursuer and the late Mr MacGregor had not in fact consented to be married.

[6] I adopt Lord Nimmo Smith's review of and conclusion from the authorities but in particular I emphasise the dictum of Lord Patrick in Nicol v Bell 1954 S.L.T. 314 at 322:

[7] Decisions in the Outer House, of which Ackerman and Vosilius are examples, were also cited to me, including Walker v Roberts 1998 S.L.T. 1133, a decision of Temporary Judge J.M.S. Horsburgh, Q.C. In my judgment the later cases serve to illustrate change in social conditions and perceptions from those when the law was stated in Nicol v Bell. At that time living together without marriage was highly uncommon amongst respectable persons. Then the status of marriage was more highly regarded and, as the references in Clive to evidence from hotel keepers illustrate, it was necessary for certain purposes for persons on occasions to pretend they were married even if they were not. The same considerations do not apply today or at least not with the same force, and, apart from the evidence to which I later refer in the present case, "living in sin" is not a phrase in common usage. Persons who cohabit, married or otherwise, are referred to frequently as "partners". No stigma attaches to such a domestic arrangement between unmarried persons.

[8] I observe in passing that while no doubt the evidence in Vosilius was clear to the Lord Ordinary, I am unable to follow his reasoning that the fact that there was a spiritual and religious objection to those parties going through a ceremony of marriage provided a reason for affirming that they had exchanged matrimonial consent. Some might think the opposite to be the case and might doubt the logic of parties being proved to be in fact married because of that obstacle and rather than it being plain that they did not intend to be married. One might have thought, that the same religious objections which were present in that case would apply to any marriage formal or informal.

[9] Counsel in presenting their submissions followed the pattern set out by Dr Clive in his treatment of the individual requirements of the law. These requirements are:

No issue arises in the present case as to requirements (a), (c) or (d), although some cohabitation took place in Blackpool at Mr MacGregor's caravan sited there on holiday excursions.

[10] No any issue arises to requirement (g), both parties having become free to marry on 1 April 1982.

[11] Accordingly the issues which require to be addressed in the present case are (1) whether the parties cohabited as husband and wife; (2) whether the pursuer and Mr MacGregor have been proved to have been reputed to be husband and wife and, if so, whether the repute was sufficiently general; (3) whether if these requirements have been satisfied, the presumption of tacit consent has been rebutted and (4) if marriage has been proved, at what date should it be held to have taken place.

Cohabitation

[12] The pursuer commenced a relationship with the deceased many years before 1982. He moved to live with the pursuer in the house which she tenanted from the local authority. They cohabited thereafter, firstly, committing adultery and thereafter continuing in the same relationship. The pursuer's principal averments were that they became known to their friends, neighbours and acquaintances and held themselves out as Mr and Mrs MacGregor. Public and socially they were regarded as man and wife and were regarded as such by family, friends, neighbours and acquaintances. The parties' respective incomes were regarded as joint family income. The pursuer, Mr MacGregor and the pursuer's children lived as a family. Neighbours and friends of the couple knew the pursuer as Jean MacGregor. Mr MacGregor held the pursuer out as his wife. She also avers that they had a name-plate until 1995 at 52 Lomond Walk and 49 Wrangholm Drive which read Mr and Mrs J MacGregor. Social correspondence was addressed to them as Mr and Mrs MacGregor. In about 1996 they purchased a static caravan in the name of Mr and Mrs MacGregor and rented a site for it in Blackpool in that name. She notes that in the action of divorce against Mr MacGregor it was averred that since his separation from his wife in September 1973 the pursuer and Mr MacGregor lived together as man and wife. She admits that on occasions she filled in a bingo card in the name of Devlin, but avers that she would normally use the name MacGregor. She admits that the standard security over the house at 49 Wrangholm Drive and related policies were in the name of John MacGregor and Jean Devlin. She explains that when required to complete official forms and documents the pursuer stated the surname Devlin on the mistaken assumption that to do otherwise may be illegal or improper. She avers that at the Masonic Club, New Stevenston, she was normally addressed as Jean, or less frequently Jean MacGregor; but that they might be referred to there by the use of the name MacGregor. At the Orange Hall she says she would be similarly addressed. Mr MacGregor considered himself to be married. She also avers that the defenders did not approve of her.

[13] The pursuer's evidence was not as clear or categoric as her averments. The tenancy of the local authority house at 49 Wrangholm Drive they stayed in together was in her name. It was purchased the year after they moved there and title was taken in the names of John MacGregor and Jean Devlin as was the mortgage with the Halifax Building Society. It is apparent from the documents produced from the Land Register that the pursuer must have obtained a discount when the property was purchased and it may be inferred that it was Mr MacGregor's income which sufficed to encourage the Halifax Building Society to give a mortgage. She said they regarded themselves as man and wife and had plainly been living together for a considerable time before the property was purchased. When asked why she did not use the name MacGregor, if she had in fact been using it, she said that she thought it was wrong to use MacGregor in a legal context and so used the name Devlin and she did likewise with the other official documents. She said that so far as finances were concerned everything was split and bills were shared. However, this does not seem particularly likely in view of the disparity in their incomes. She also said that they had acquired a static caravan in Blackpool in the name of Mr and Mrs J MacGregor. Documents for site fees were produced. However, in the Confirmation of the deceased's estate the caravan is entered as an asset of Mr MacGregor only. When she went to the Orange Hall the names used were Jean and Ian. Those who knew her, she said, would know her name was Devlin. She was then referring to the mutual acquaintances that she and Mr MacGregor had in the band of which he was an enthusiastic supporter. She said she wished to record herself as "common law wife" on Mr MacGregor's death certificate but was prevented from so doing by the Registrar. In cross-examination she agreed that at bingo she used the names Donaldson, Devlin and sometimes MacGregor but had not told that to her solicitor. She admitted that she made most frequent use of the name Devlin at the Orange Hall and at the Masonic Club and that the people there present would know that they were not legally married. Second names never came into things. She said that numerous persons knew the situation; and knew that there was no marriage certificate; she said she never tried to deceive them or tell them there had been a marriage ceremony but said that they all looked on them as man and wife. After the death of Mr MacGregor about 100 sympathy cards were received, of which one or two were produced in process. She offered no explanation why only those few had been kept. She asserted that she had spoken about a marriage ceremony to the deceased but in response to a question as to why marriage had not in fact happened, she said that they had not got round to it. She was known throughout as Devlin to all the friends that had known them before his divorce.

[14] When asked about the situation between Mr MacGregor and the Orange Lodge, which he had been prevented from joining because the Lodge disapproved of people "living in sin", she said that Ian did not really want to get on the committee. That matter had been the subject of specific averment by the defender but only met with a general denial by the pursuer. I did not accept the pursuer on that matter. There was clear evidence from a committee member of the Lodge, John McGhee, who was chairman at the time, that he had told Mr MacGregor that he would have to object to his application to join the Order because he was living in sin. Mr McGhee did not in fact even know that Mr MacGregor was divorced let alone reputed to be married to the pursuer or holding himself out as married to her. Mr MacGregor had in fact asked him on two separate occasions whether he could join and was told that it was still the same rule.

[15] The pursuer in cross-examination said that the name-plate she referred to was a cheap plate she had bought in Blackpool. She was unable to describe its colour or material, but said that it read "Mr and Mrs J MacGregor". There was apparently no other plate on the door at any time and none at all after the door itself had been renewed and, apparently, no name-plate on any door with the name Devlin. I consider this evidence as somewhat peculiar. If the pursuer used the name Devlin on all official matters such as, for example, voters' roll and the like, as well as her building society loan, passport, pay roll at her work, it would be surprising if there was a name-plate on the door at all that it did not also contain the name Devlin because official letters to her would have been delivered to that address. Furthermore, it was the surname of her sons who lived with her at the 3 different houses.

[16] The pursuer also claimed, in the application for the deceased's B.T. pension that there had been a joint bank account, indicating joint household arrangements. The investigator was persuaded there was a "marriage-type relationship". She got a share of the pension. There was no joint bank account.

[17] I have narrated the evidence of the pursuer at some length since it is bound to be the high watermark of the pursuer's own case that she and Mr MacGregor should be declared to have been married. Is her evidence supported? There was evidence from her sons, Stewart and David. Stewart said that his mother was known as Jean Devlin, although to others as Jean Donaldson and to several as Jean MacGregor. He thought it did not matter what name she used. He called Mr MacGregor Ian to his face and to his friends he may have referred to him as father. He regarded the arrangement as a family but was not aware of his real father until he was about 7 or 8. Ian was always there so far as he could remember. He referred to a notice placed in the Motherwell Times under the heading "Hooper Devlin" in December 1996 which read "Both families are delighted to announce the engagement of Annette Hooper, only daughter of William and Elizabeth to Stewart Devlin, eldest son of Jean and Ian". His evidence was that Mrs Hooper thought that Ian MacGregor was his father, saying that the notice referred to his mother and Ian MacGregor. I was told, after speeches had concluded in the case that Mrs Hooper was now dead. There was no other evidence about her interviews. I do not regard the newspaper advertisement as adding anything to the case. Stewart Devlin was not the eldest son of Mr John MacGregor. He was in fact the eldest son of another John, John Devlin. I regard the advertisement, if it did refer to Mr Ian MacGregor, as simply evading the precise status of Jean and Ian. Stewart Devlin gave no evidence about a name-plate nor indeed did David. Neither of the Devlin sons spoke to Mr MacGregor ever referring to Mrs Devlin as his wife. He referred to her as "Jeannie" and David Devlin did not know whether his mother was ever known as MacGregor. It did not matter to her, said David, how she was known or how Mr MacGregor wished to be regarded.

[18] A Mr McCusker, who was a neighbour at Lomond Walk, thought that the pursuer and Mr MacGregor were married, but two years later he was told they were not. They had lived together as though they were man and wife but Mrs McCusker knew that they were not.

[19] Thomas Miller spoke to Jean and Ian going together to the social club. He said they were always a couple "Jean and Ian MacGregor". He always thought they were married, but he did not know Jean's children nor any of Mr MacGregor's children and said in re-examination that he had not had cause to call the pursuer MacGregor. Jane Miller, his wife, spoke to the pursuer and Mr MacGregor coming to the club. Jean would come to collect him. She had no occasion to ask anything about their relationship. She thought they were a couple and thought they were married, but she did not enquire. They gave the impression, she said, of being married and did not indicate they were not.

[20] Mary O'Hara spoke of knowing Jean MacGregor in 1996 through her, now deceased, boyfriend who knew Ian. Her boyfriend had said to her "that's Ian's wife".

[21] Ann MacInally, who lived at 54 Lomond Walk, knew Jean Devlin in 1980 as neighbours and she looked on them as a family. She knew them as Devlin through the boys. A minibus which Mr MacGregor ran bore the name MacGregor. She thought the family name was Devlin until she saw the bus. The bus, she said, bore the name "Ian MacGregor". They lived as a family. She looked on them as a couple and said "I thought they would eventually get married". Mary O'Neil spoke to their living together. She assumed their name was MacGregor; they were living as man and wife and nobody, she said, told her otherwise. She spoke to having seen the name MacGregor on the minibus but did not socialise with them.

[22] Roseanna Clark, who lived at 53 Wrangholm Drive, thought they were married. She thought that the Devlin sons were Ian and Jean's children. She said that her husband Brian Clark deponed that he knew them as neighbours and that they were a married couple.

[23] Important evidence in the case was given on commission by Mrs Carol-Ann MacGregor or James in Kent. The junior counsel, Mr Roderick Dunlop, who acted as commissioner, supplied a note that the witness appeared to give her evidence in a straightforward manner and his impression was that she was trying to answer truthfully the questions that were put. Mrs James first described the late John MacGregor as her brother, but in fact he was a step-brother. His father married Mrs James' mother. She did not know where he got married, but kept in touch and invited him to visit her in Kent about 1979. She did not know whether she had met Jean before that, but they came in together as boyfriend and girlfriend. When asked how she regarded the relationship she said, I suppose as time went on you just presumed them to be a couple, just a natural progression. She saw Jean and Ian from time to time when she visited her mother. It was usually Ian, but sometimes Jean who came. Mrs James got married in 1995 and Ian and Jean attended the wedding in Kent. They came for the weekend. She introduced them to people in the home as Jean and Ian. She said "this is my brother Ian and this is his wife Jean". She said she had discussed with them how they wished to be introduced on the wedding day just to make sure it was correct. She said "How do you want to be introduced? Do you want to be introduced as Ian's partner or Ian's wife", and "both of them were very adamant that Jean was Ian's wife". Her own husband thought she was rude for asking. She was not cross-examined on that point and her evidence can be accepted. She did not know how people in Scotland regarded them.

Defenders' Evidence

[24] The defenders and their witnesses at no time conceded that the pursuer and Mr MacGregor were regarded anywhere as man and wife. Some of their witnesses, moreover, did not think that Mr MacGregor and Jean Devlin got on very well judging from their conversations with him. However, the defenders were quite clear that their father did have a high regard for and was very fond of the pursuer even if they, and no doubt their mother, did not approve of the relationship. Mr MacGregor paid aliment to his first wife until his death. He kept in close contact with his sons. He arranged hire purchase for a car for one and an accordion for another. One John Junior drove the bus. It bore the name John MacGregor t/a MacGregor Coaches and

"MacGregor of Motherwell". I accept that it did not say "Ian MacGregor". The defenders would not accept that he could have regarded the Devlin boys as sons equivalent to them, and I accept that evidence.

[25] The evidence of Mr McGhee which I accept I have already discussed. Mr Robert Thomson, a man who was in frequent contact with Mr MacGregor, said that despite knowing him for thirty years he never mentioned a lady called Jean, never talked about his wife and never mentioned divorce. He did however talk frequently about his boys and their various ups and downs. There was no question of this close friend regarding the pursuer as being held out as the wife of Mr MacGregor. Mr Cowie, another friend, but not a particularly close one, said he had never heard anyone call her Mrs MacGregor. Jean was the woman he stayed with.

[26] Mr Rae said he had never known Mr MacGregor to introduce Jean as his wife, although he had known him for twenty five years. He had known Mr John Devlin. He knew that Mr MacGregor resided with Jean Devlin, but she was not called MacGregor. Mr MacGregor had said to Mr Rae that he would never marry Jean Devlin; he said so quite often and also in front of his mother. Mr Rae thought that Mr MacGregor was not happy in his relationship. The pursuer was always known as Jean Devlin. He was close to Mr MacGregor and knew his three sons very well. His impression was that the pursuer and Mr MacGregor lived as partners, not husband and wife.

[27] John Donnelly, who had known Mr MacGregor very well for thirty seven years, played in the same band and worked with him, said Mr MacGregor sometimes discussed his affairs with him. Mr MacGregor said he was not happy. He introduced the pursuer as "this is Jean" or "this is Jean Devlin". Mr Donnelly never heard her described as Jean MacGregor. He thought that Mr MacGregor would not get married because the gulf between Ian and his sons would be too great. There was a gulf between Jean and the MacGregor sons. He said that Mr MacGregor told him he would not get married again so that he could walk out. Mr Donnelly wrote a card, after Mr MacGregor's death, and sent it to Wrangholm Drive. It was addressed to the MacGregor family. It was produced by the pursuer as an adminicle of evidence in her favour but Mr Donnelly's intention was that the card was for the defenders whom he regarded as the MacGregor family. I accepted that that was his intention.

[28] Kelly McArdle, who had just finished a laision with David Devlin had lived in the house with the pursuer, and Mr MacGregor during his lifetime. She claimed that the pursuer disliked her. She was clear, that there had never been a name plate; that David had never called him "dad"; that at bingo the pursuer wrote her card as Jean Devlin, (she was sitting next to her when she did it) that the pursuer was never called MacGregor and that at about Christmas 1999 the pursuer had said to her that she would need to change the bingo tickets since somebody could say that she had been using the name Jean Devlin.

Submissions on Repute

[29] In relation to the evidence about repute, Mr Mundie founded strongly on the acknowledgement at the wedding in England; the evidence of the name plate and the neighbours; the fact of the long cohabitation; the summons of divorce which had been served on the pursuer as paramour; and the Blackpool caravan.

[30] Mr Davidson concentrated his attack on this part of the case by pointing to what he described as various gaps in the evidence which might have supported the contention of marriage. No witness could point to any special occasion on which either held out to the other as his or her spouse in Scotland. No rings had been exchanged. There was no joint bank account despite erroneous information to that effect given in the claim to BT for a pension by the pursuer. There were no entries in any official documents. There was no evidence given by close friends or sisters. A Mrs Lacey, who was mentioned as a particular friend, sat in Court on the public benches but did not give evidence. None of the authors of any of the sympathy cards produced were brought as witnesses by her. There was no obstacle to the pursuer and Mr MacGregor getting married and the pursuer admitted that a very large number of people "knew the situation". The pursuer and Mr MacGregor had a wide social network and the only evidence in support of the pursuer came from people who did not know them very well. The summons of divorce contained words of style in divorce proceedings. The name plate was not convincingly spoken to. There was no convincing evidence about what the arrangement was about the caravan site and the only isolated example of any holding out as man and wife was at the wedding of the step-sister in Kent. There was, however, no person there from Motherwell and it was plain that the couple did not want to make a fuss. The description on the BT correspondence that the pursuer and Mr MacGregor had a "marriage type" relationship was nothing other than descriptive of cohabitation.

Decision in relation to repute

[31] The evidence of repute in this particular case is fatally divided. The evidence of at least some of those in the best position to speak was absent. That cannot be ignored. I was not satisfied that the requisite standard of evidence to establish repute, i.e. repute which is substantially general and undivided has been achieved. The impression was given that the close circle in Motherwell were embarrassed at the situation which existed. Persons, in my view, avoided taking up a position and certainly avoided any situation in which acknowledgement of the pursuer as Mr MacGregor's wife was necessary or clear. Even an introduction of the couple as Jean and Ian MacGregor can be explained if one places a comma after "Jean". No witness spoke to an introduction as Ian and Jean MacGregor. Apart from the occasion in Kent, there was no evidence that Mr MacGregor had ever acknowledged the pursuer as his wife and in particular no evidence from Scotland. I was not satisfied that the evidence in relation to the alleged name plate was either clear or compelling. What was in my view clear and compelling was the evidence in relation to the membership of the Orange Lodge. Mr MacGregor plainly wanted to be a member and had asked about it on more than one occasion. On each occasion he was told that he could not be as long as he was living with Mrs Devlin but unmarried to her. However quaint that attitude might appear, it was easily remedied had Mr MacGregor been so minded. There was no apparent impediment to marriage and it would therefore appear that Mr MacGregor was prepared to forego his wish to be a member of the Orange Lodge if that meant going through a marriage ceremony with the pursuer. I also accept that he had expressly stated that he did not intend to marry the pursuer. The belief that the pursuer and Mr MacGregor were husband and wife existed only at a peripheral level of social contact. So far as the evidence about Kent is concerned, it is my view that that was truly an occasion in which social embarrassment was to be avoided and because of the distance from Motherwell, the fact that there was nobody else from Motherwell present and that an explanation would have to be given that the two were not in fact married, meant that the so-called acknowledgement was nothing more than a matter of social convenience. In the face of the other evidence it does not suffice as an acknowledgement.

[32] I am supported, I consider, in the view I have taken under reference both to Ackerman and Vosilius. In these cases there were rings and engagements. There was clear evidence about preparations for a wedding in Ackerman, and in Vosilius clear utilisation of the alleged husband's surname by the pursuer not only in general but also in relation to official documents plus an acknowledgement by Mr Vosilius of the relationship in hospital records. Nothing of that sort exists here and I cannot find the substantially undivided repute which is necessary.

Evidence to counter any presumption of marriage arising from repute

[33] The evidence, which I accept, from Mr Donnelly that Mr MacGregor had told him he was not going to get married again would in itself be sufficient to counter any suggestion of repute. That evidence did not stand alone however, and the evidence in relation to the Orange Lodge given by Mr McGhee and the evidence of James Rae of what the deceased had told them were clear indications that he did not intend to be married. Support for that can also be found in the fact that he had been through one divorce and was still paying periodical allowance to his first wife and in his desire, spoken to by witnesses, to maintain a close relationship with his own sons who, it was plain from their evidence, would have required to accept, but would not have approved of marriage.

Date of marriage if concluded

[34] The date given in the summons simply cannot stand and there is no clear evidence other than the acknowledgement in Kent of a married relationship. Mr Mundie suggested that 31 December 1995 might be an appropriate date if the court were not to accept one year after 1 April 1982. There was certainly no evidence to suggest that 1 April 1983 was a significant date of any kind and had I been minded to grant declarator it would have been from 31 December 1995.

Conclusion

[35] In the whole circumstances, I am unable to find that there has been cohabitation with habit and repute as husband and wife of a sufficiently undivided and compelling character to entitle the pursuer to the presumption of marriage. Even if I were wrong about that the evidence that the deceased, Mr MacGregor, did not intend to get married which I accepted would have been sufficient to rebut any presumption raised. There is, in the changed social circumstances of today, no good reason why a marriage, should be declared unless there is evidence that the alleged husband clearly acknowledged and held himself out as the pursuer's husband. That evidence is lacking and even if the pursuer and Mr MacGregor had discussed marriage, as I expect they did, the idea that they never got round to it after 23 years and in the face of a clear incentive to do so is compelling evidence that it was never the deceased's intention to be married. That intention is not inconsistent with his being fond of the pursuer and agreeable to her sons as the man in the household. He did make some provision for the pursuer in that his share of the house they lived in, albeit acquired because of the pursuer's tenancy rights, and the mortgage payments thereafter together with the assignation of certain insurance policies, did indicate a degree of responsibility and fondness. However, he did not make a will, i.e. any public declaration of his wishes after his death in relation to his estate and he did not carry through any assignation of his rights under the BT retirement pension scheme as he could have done. The conduct of the trustees of that scheme is irrelevant so far as the court is concerned, as is that of the DSS which, it appears, has recognised the pursuer's claim to a widow's payment.

[36] I shall accordingly sustain the defenders' second and third pleas-in-law and repel the pursuer's first and second pleas and grant decree of absolvitor.