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Brown v. Brown [2003] ScotCS 156 (27 May 2003)

OUTER HOUSE, COURT OF SESSION

F71/01

OPINION OF LORD McCLUSKEY

in the cause

JAMES BROWN

Pursuer;

against

CHRISTINE BROWN

Defender:

________________

Pursuer: Wise; Russel & Aitken, W.S.

Defender: Bell; A & W M Urquhart,

27 May 2003

[1] This is an action of divorce. The parties are at issue on the question of the date that falls to be treated as "the relevant date" for the purposes of section 10(3)(a) of the Family Law (Scotland) Act 1985. By interlocutor dated 24 July 2002 the Lord Ordinary allowed parties "a preliminary proof in respect of the date of separation of the parties'. I do not think that that interlocutor was correctly worded; but parties entered into a Joint Minute to the effect that I should determine the relevant date within the meaning of the 1985 Act. I shall approach the proof on that basis. I shall make a finding as to the date on which the parties ceased to cohabit, within the meaning of that Act.

[2] The action is brought under section 1(2)(e) of the Divorce (Scotland) Act 1976; so the pursuer has to prove "no cohabitation between the parties at any time during a continuous period of five years ....... immediately preceding the bringing of the action". This provision is qualified by section 2(4), which requires that, in assessing whether or not the period has been "continuous", no account is to be taken of any period or periods not exceeding 6 months in all during which the parties cohabited with one another. Section 10(3) of the Family Law (Scotland) Act 1985 provides that "the relevant date" for the purposes of that Act is, subject to subsection (7), the date on which the parties ceased to cohabit. The effect of subsection (7) is that where, as here, the parties were not cohabiting for about 5 years before August 1996 (when the pursuer returned to live at the matrimonial home at Bank Road) any period of cohabitation thereafter of less than ninety days is to be left out of account. The summons passed the signet on 11 December 2001. So, in this case, the real issue of fact is whether or not, on the evidence, the parties lived together as man and wife for at least 90 days after the pursuer returned to live at Bank road. The precise date in August 1996 when he resumed living at Bank Road was not made clear in the evidence; but the precise date is not important. The importance to the parties of the issue in dispute as to the relevant date is apparently that it may have a material bearing upon the value of the matrimonial property for the purposes of the 1985 Act. But I heard no evidence or submissions on that matter.

[3] The parties, both of whom had been married before, married on 14 November 1966. The pursuer avers that they have not lived together as husband and wife since 1st August 1991. The pursuer does not dispute that, after an absence of about five years, he moved back into the matrimonial home at 11 Bank Road, East Linton, for a period commencing in August 1996; but he maintains that after he did so the parties effectively lived separate lives under the same roof, that he was absent on some nights and most days and that after a few weeks he moved out altogether; they did not have sexual relations. Immediately preceding his return to Bank Road, he had been living with Alison Crawshaw in Inveresk. Before that he had been living with Alison Crawshaw in the Grange district of Edinburgh. The defender, however, gives a wholly different account of what happened in and after August 1996. Her evidence is that the parties resumed cohabitation as husband and wife in August 1996. The defender maintains that, although the pursuer lived in the house somewhat irregularly after his return in August 1996, the cohabitation continued into the next year and indeed did not finally end until the Spring of 1998. She also maintains that the pursuer had sexual intercourse with her on an occasion in July 1999. I shall refer to these matters in more detail later.

[4] I heard a good deal of evidence about what were truly peripheral matters, though I would not characterise that evidence as wholly irrelevant, at least to the issues of credibility and reliability. Thus evidence was given about the parties' relationship over the whole period of the marriage, about the pursuer's various extra marital affairs, about the comings and goings of various members of the wider family and about the habits and lifestyles of the pursuer and others. Some of this material is of a corroborative character; some of it sheds light upon the character and dispositions of the principals; and some of it has a bearing, sometimes marginal, upon the probabilities, and it is thus to some extent helpful when I have to decide between two irreconcilable versions of the same events as given by the pursuer and the defender.

[5] I have no choice but to reject the evidence of one party or the other on some matters of fact central to the factual issue in dispute, namely the true character of the relationship that obtained between them after the pursuer returned to the matrimonial home in August 1996. In making the necessary choice, on the balance of probabilities, I have been assisted principally by my own assessment of the parties who as witnesses gave detailed evidence in chief and in cross, by some contemporary documentation, by the evidence of other family members and friends or acquaintances and by the plausibility of the different scenarios advanced by each party.

[6] The pursuer was a police officer until about 1993, when he retired with the rank of Chief Inspector and was awarded an MBE. It emerged in the unchallenged evidence of the defender that at one stage he had been dismissed from the force because an internal disciplinary tribunal concluded, despite his denial, that he had engaged in a sexual relationship in contravention of the police code of conduct; but that six months later he was reinstated. I mention this only because the episode fits in with a general pattern of behaviour that the evidence generally disclosed; for the pursuer has engaged in a number of sexual relationships with other women. Throughout the period of the marriage he repeatedly denied such relationships to his wife and has been, understandably, but very effectively, reticent about disclosing these relationships to any others, with the possible exception of his daughter, Deborah Fleming. She was born in September 1965 to a woman with whom the pursuer had had a relationship the details of which were not disclosed in evidence. The pursuer did not play any part in the upbringing of that daughter. It appears that he did not meet her during her childhood and knew little if anything about her. She decided when in her early twenties to trace her father. She did so and overcame his initial reluctance, and indeed refusal, to meet her. They met in the late 1980s, probably 1989, and quickly built up a close and sympathetic relationship. It continues.

[7] The pursuer and his daughter were in many ways surprisingly similar in character. Each came through in evidence as a strong-willed, forceful, intelligent, articulate and decisive person, as a highly capable court witness, and as someone who unhesitatingly knew his/her own mind. As it happens, Deborah Fleming followed her father into the police force. She, like him, gave her evidence very clearly and precisely. One interesting aspect of this discovery of an adult daughter and the developing of a very close personal relationship between father and daughter is that the pursuer kept it from his wife, even although the relationship with Deborah Fleming began and developed successfully when the parties were still living together as man and wife before 1991. The pursuer said in evidence that he concealed the matter from his wife to avoid distressing her; but it is difficult to see what distress the disclosure might have caused, given that both parties had been married before, both had a child by the previous spouse, that Deborah Fleming must have been conceived well before the parties married each other; and furthermore the defender had clearly been having one or more extramarital affairs before Deborah appeared on the scene, without obviously caring about the possible upset to the defender from that behaviour. The defender maintained that, in those circumstances, she would not have been upset. I believe her and I reject the pursuer's assertion of the reason he gave for not telling her. Possibly a more significant feature of these circumstances is the very fact that the pursuer decided to keep this important relationship to himself and successfully concealed it from his wife. It is quite plain that he believed and acted upon the basis that that he was fully entitled to make his own rules in such matters; and that what he got up to, whom he saw and what he did when away from Bank Road and from his wife was nobody's business but his own; and the less anybody knew about it, the better. At about the same time as Deborah first came to see him, the pursuer was frequently absent from the matrimonial home ostensibly on police or police-related work and he stayed away from home for quite substantial periods without disclosing to his wife where he was. If she asked, he would give her some answer that could not readily be checked and, if she needed to get in touch with him, she had to do so by telephoning the police station to which he was attached. Sometimes she did so but got unsatisfactory information about his whereabouts. What is quite clear is that he had no difficulty in so arranging his life that it was in separate, nearly watertight compartments; and those whom he encountered in the different compartments were kept out of each other's way. Most particularly, the defender was kept in the dark about virtually everything that the pursuer did when out of East Linton; and, if necessary, he lied to her, or evaded her questions so as to preserve her ignorance. This practice must have been on quite a grand scale as it is clear that, throughout the years of the marriage up until at least 1997/1998 he was having extra-marital affairs and, at least initially, successfully concealing them from his wife and indeed from others in the family. It is interesting to note that, once the very close bond with Deborah Fleming developed, the pursuer spoke openly and freely with her about his various extra-marital liaisons; indeed she became very close to Alison Crawshaw and friendly with Susan Kinloch, with whom the pursuer had an adulterous relationship over a period of many months after August 1996 and before March 1998. This is not a court of morals; but the manner in which the pursuer's conducted his life demonstrated that he had little regard for his wife's feelings, that he made up his own rules about infidelity and told people about his comings and goings only on a "need-to-know" basis. This is of importance in this case because the only significant evidence that the pursuer led in support of his own account of matters was evidence from witnesses who were, in effect, saying that they did not understand from anything that he told them that he had resumed cohabitation with his wife in August 1996, when the relationship with Alison Crawshaw ended. I regard this evidence led in support of the defender's position - almost all of which was based upon what the pursuer did, or did not, say to the witnesses about how, where and in what precise circumstances he was living - as being of very limited value in determining the truth about the relationship that obtained between the pursuer and the defender after he returned to Bank Road in August 1996. It is plain that the pursuer conducted his life on the basis that he should remain in control. Cards were best played close to the chest.

[8] The pursuer had an affair with Susan Kinloch after his affair with Alison Crawshaw ended and after his return to live at Bank Road. The pursuer's evidence on this latter affair is somewhat thin, even although he claimed that the very having of this affair pointed to his not having resumed cohabitation with his wife in 1996 and 1997. The affair ended some time after September 1997 when the pursuer and Susan Kinloch returned from a holiday together in Portugal. The defender knew nothing of this affair at the time and did not even know of the holiday in Portugal. The pursuer had told her that he had been on some forestry business, to explain his absence at that time. By this time, however, in 1997, the pursuer had met and become increasingly close to Heather Mwembo. She had been engaged by him in February 1997 to work as administrative manager at the premises at Sawmill where the pursuer had a business, which he had developed before and after retiring from the police in 1993. The premises consisted of a cottage and two rooms. That relationship became sexual towards the end of 1997.

[9] I now turn to the period that is of most importance in this case, the period beginning with the pursuer's return to Bank Road following the end of his relationship with Alison Crawshaw; he claimed that it ended on 1 August 1996. I summarise the pursuer's account first. It is that he had to return to stay at that address and to take most of his belongings there as a temporary measure following the break up with Alison Crawshaw. He moved into the study which he had been in the habit of using from time to time even during the years when he had been with Alison Crawshaw. It was where he stored most of his papers and other materials that he required for business or other purposes. He claimed to have no secure place for his papers at the Sawmill. He also needed a place to house the stuff he had collected while living with Alison Crawshaw. After his return to Bank Road he says that he occasionally stayed overnight there; but he sometimes stayed elsewhere, notably at the house of his aunt in North Berwick because her condition of increasing senility sometimes required that he be there to attend to her. His attendance upon his aunt was confirmed by her solicitor, Douglas Hunter, and others. Much of his correspondence was sent to Bank Road over the years rather than to other places where he stayed or worked. My clear impression is that part of the reason for that was that he did not wish to broadcast his whereabouts and movements any wider than was absolutely necessary. Even his own solicitors wrote to him at Bank Road, though the pursuer claimed, and Douglas Hunter confirmed, that that was the result of error by an inexperienced member of the firm. He also claimed to spend the occasional night at the cottage at East Lodge - the Sawmill - though not while his son, Stewart and girlfriend, Denise, were living there. He says that there was no reconciliation between him and the defender, that on the occasions when he stayed overnight he slept apart from his wife, that she did not cook or wash for him. Indeed she refused to do so: in effect he was just camping out there from time to time until he found somewhere else to stay; he says that he did not have sexual relations with his wife then or indeed at any time after 1991. By August 1996 he had become friendly with Susan Kinloch and spent the bulk of his time (80%) at her house thereafter: she was living at Athelstaneford. He formed a sexual relationship with her; but the evidence did not disclose precisely when it began. He claimed that he did not know if the defender was aware of the relationship with Susan Kinloch. He certainly did not tell her about it. Apart from a period of about a fortnight in September and October 1997 he claimed that he only spent the odd night at Bank Road. He called roughly every second day; if his wife needed to get in touch with him she phoned him at his place of work. She made many calls and eventually, but much later, probably in November 1997, he decided that the calls were a nuisance and caused her phone to be restricted so that she could not make outgoing calls from it: as he paid the bills, the phone was in his name. (It is of some interest to note that his wife put up with this state of affairs for several years, and indeed concealed it from others.) The pursuer said that unsuccessful attempts were made to reach an agreement with her involving his providing a loan to enable her to live in a different, smaller house. He continued to pay all the bills for Bank Road, as he had always done and he continued to aliment her. Sometimes he stayed there just to make the point that it was his house and he could stay there if he wanted. His had a short stay at Bank Road in September 1997 following his holiday in Portugal with Susan Kinloch. He returned from that about 18 September and, he says, the relationship with her terminated about then. Between August 1996 and September 1997 his relationship with Susan Kinloch was, he said, "on and off". He says that by September 1997 "she was not happy with me". About that time his sexual relationship with Heather Mwembo began; he claimed that that relationship became sexual from about October 1997, though it appears that Susan Kinloch might not have known about the new lover in his life until early in 1998. During his stay at Bank Road in September 1997 he says that he slept in the master bedroom and his wife slept in Stewart's room. He said that he slept there because he wanted to sleep in the room with the telephone. This was a slightly curious piece of evidence seeing that he used a mobile phone and everyone whom he wanted to be in touch with knew how to phone him by that means or to phone him at the workplace: Deborah Fleming always did so for example. [In retrospect, this evidence about sleeping in the room where the telephone was appears to me to have been given to anticipate the evidence expected of the sons to the effect that he slept in the master bedroom.] He acknowledged that even as late as the early months of 1998, he might have stayed one or two nights in Bank Road if, for example, he had been caught in the rain and came in wet. He remembered having Christmas lunch with the defender and other of the family, at Stewart's insistence. When asked if, after 1996, he had gone out socially with his wife, he replied, "Not that I can remember." He also said that he could not remember having sexual relations with his wife after his return in August 1996, adding that at that time relations with his wife "were not particularly amicable". Even when he stayed there he was, he said, working seven days a week and was seldom in the house. The defender offered a reconciliation on certain conditions that she sought to lay down; but he declined to accept a reconciliation on those terms. He would not agree to the condition that the house be put in her name. He repeatedly emphasised that he owned the house at Bank Road. When he was asked (in Chief) if during the period in September/October 1997 that he stayed in the house there was any attempt at a reconciliation, he replied "Not that I can remember". He claimed that he had started living with Heather Mwembo in Gullane at her house there in about October 1997. He said that he tried to avoid the defender thereafter but still paid all the house bills and maintained her. He removed the majority of his belongings from Bank Road. In Cross he clearly dissembled or lied about what he had told his wife about the various liaisons that he had over the years or where he was staying when away from home. (Reference may be made, for example, to 7/9 of process, in which he is at best prevaricating and dissembling about his adulterous relationship with Alison Crawshaw with whom he had then been living for some time). He denied being secretive about these affairs, though he plainly was as secretive as he could be, at least in relation to his wife's knowledge of them. In effect, he claimed that he had not stayed at Bank Road after March 1997, except for the period in September/October, and that latter stay he described as a mistake. He made the interesting comment when giving evidence that the problems and issues arising out of the marriage and people's personal affairs should not be ventilated in the courts. This attitude, for which there may be much to be said, nonetheless reflects a regret on the part of the pursuer that by ending up in court he has ceased to be in control.

[10] By contrast with her husband, the defender presented as a simple, straightforward person. (I do not use the word "simple" in any pejorative sense.) Her manner of giving evidence was not practised and she could sometimes get confused - though my impression was that the confusion owed something to the manner in which she was questioned. She was spontaneous and forthright, especially as she got accustomed to being questioned about personal matters that she plainly found sensitive and embarrassing. She emerged as one who felt that she had little alternative but to tolerate her husband's comings and goings. He paid for the house; he paid the bills; he kept coming back; she loved him and hoped that eventually he would settle for her rather than for his shorter-lived relationships with other women. He kept her in the dark about the details of his affairs, although in 1993 or 1994 she discovered - not through him - about Alison Crawshaw and that he was living with her. She just put up with it: she did not take steps to divorce him. She behaved almost as if she had no independent choice; and indeed when she talked to him about divorce she accepted his rejection of any such suggestion on the ground that he did not want to waste money on lawyers. Her attitude was essentially one of submissiveness; his was one of domination. Throughout the years in the late 1980s, when he told her what were clearly lies about where he had been or what he had been doing or who might be responsible for the mysterious phone calls made to the house from time to time, or if he told her "not to be silly", she accepted his words meekly and concluded that she could not properly challenge him. It is unnecessary to relate all of the incidents of this kind that came out in the course of her evidence. In view of the parties' agreement about a separation between 1991 and 1996 I need not deal with her evidence, or that of others, about the pursuer's occasional returns to Bank Road during that period.

[11] In relation to his return in August 1996, she accepted him back without much ado: indeed she acted almost as if he had been away for a long weekend, instead of living in family with another woman for five years. On his return he said that it was his house and that he could come and go as he pleased. He spent a night in the study and departed the following morning when she was at church. She noticed however that he had brought a lot of unfamiliar boxes and other items and left them in the study. They appeared to be all his belongings. He had replaced her clothes with his in her chest of drawers. He returned and told her that he was back to stay and that it was his house. He apologised for his affair with Alison Crawshaw. She explained that her own attitude was that what was happening was "a bit of relief"; because she thought that he was no longer having an affair. For a few nights she slept in one of the spare beds. Then one night he came in, upturned her bed and said that she was his wife and that her place was beside him. This happened more than once and she finally decided that it was easier just to go to bed with him, and she did. After that they had marital relations fairly frequently. This general state of affairs continued for the rest of 1996 and beyond. She was not asked to cook for him because he kept such hours that cooked meals for him were not required. It was as normal a marriage as it had been before 1991. He continued to use the study and kept some papers locked there. Although she did laundry for him if he left it in the laundry basket, he sometimes took some of his washing to the sawmill. She was much happier that he had returned home. Although she felt that he had humiliated her by living with Alison Crawshaw, and his conduct had made her angry, she still loved him and was quite happy that they were together again. She wanted her marriage to survive. If in the early months he stayed away for the odd night he explained that he had been working so late that he had stayed at the sawmill; and she accepted that. In point of fact, it is clear that he spent at least the odd night with Susan Kinloch in the period after August 1996, though it is far from clear exactly when he ceased to do so. By the beginning of 1997 the spending of nights away was a more frequent occurrence and often no explanation was forthcoming. Matters progressed and by about March 1997 he was staying away more often than he was staying at Bank Road. However, as she explained, "there was not a lot I could do about it". If he was questioned about having an affair, he replied that he was too busy to have an affair. He was having at least one affair in 1997. It is interesting to note that in March 1998 (a date that initially appeared to be accepted by both sides, although the letter contains no reference to the year), Susan Kinloch sent or delivered to the house at Bank Road the letter number 7/7 of process in which she accused the pursuer of "cheating" because, she alleged, he was "screwing" Heather Mwembo. The pursuer did not see that letter at the time and claimed that it was inaccurate at least in respect that Susan Kinloch had already, in or about September 1997, got back the key of which, in that letter, she demanded the return. Given the terms of the letter, it is difficult to accept the pursuer's evidence on this point. By March 1998 the pursuer was away nearly all the time from the house at Bank road, though he still came occasionally to collect mail. It is clear that the defender did not know anything about the pursuer's relationship with Heather Mwembo till she received the letter 7/7 of process. Even then he denied having an affair with Heather, although, according to his evidence, and that of Heather Mwembo, he had actually been living with Heather since the autumn. But the defender discovered that the pursuer was having an illicit affair because, a few weeks before she got that letter, someone had sent her some "nasty photos" showing the pursuer and a woman with no clothes on. The pursuer, when asked about these photographs, said that someone must have put his head in the photograph in place of that of the man there pictured. He did not tell her who the "S" was - "S" being the apparent author of the letter 7/7 of process. The arrival of that letter was "the last straw" for the defender; from then the marriage was "over". The pursuer still came to the house from time to time and eventually she had the locks changed to keep him out. She said in evidence that on one occasion in 1999 he came into the house at a time when she emerged from the shower unclothed and that he had sexual relations with her. I make no finding about this because there is no record for it and it has no direct bearing upon the determination of the relevant date. However, I do not disbelieve the defender in relation to this matter: the event and the pursuer's conduct would fit a general pattern of his treating the defender, just as he treated the house, as his property to do what he liked with.

[12] It may seem bizarre that the defender put up with so much and meekly accepted her husband back in and after August 1996; but, in my opinion, she did just that because she wanted the marriage to survive. She had no illicit sexual adventures herself. She was content to live in the family house where she had been reasonably contented for many years. The pursuer fulfilled at least his financial obligations towards her and on occasion (e.g. a wedding and a christening) was prepared to behave in public as if the marriage was enduring. The family supported her reasonably well. Furthermore, she was plainly not an assertive or strongly independent-minded individual; and she submitted to her husband's will rather that engage in a clash of wills or even a legal battle. It may not be without significance that she did not try to divorce him at any time even although it would have been easy to do so on the ground of his repeated adultery; she had sufficient evidence from others. The whole picture she presented was of a resigned endurance. The pursuer told her that things would work out.

[13] Each party led the evidence of several witnesses. In the case of the pursuer's witnesses, namely Heather Mwembo, Deborah Fleming and Douglas Hunter, the most significant feature of their evidence was that they were virtually giving hearsay evidence. Their knowledge of what happened at Bank Road after the pursuer's return there early in August 1996, was wholly and entirely hearsay evidence. The source of their knowledge about what happened there was the pursuer himself. They had nothing independent to say in relation to what transpired between the pursuer and his wife after his return there. Thus, for example, Heather Mwembo did not start to work with the pursuer until February 1997. Her sexual relationship with him began in October or November 1997. She can shed no light whatsoever on the critical period, i.e. the months following the beginning of August 1996. Her own evidence to the effect that she and the pursuer lived together at Gullane once they started their sexual relationship is contradicted by other evidence, including the evidence contained in the affidavit of Margaret Asplund (6/27 of process) which the pursuer lodged. If I had to, I would simply reject her evidence on that point. As for Deborah Fleming, she was never in the house at Bank Road. She knew Susan Kinloch. She knew Alison Crawshaw. She visited the pursuer from time to time at this work place or elsewhere, but she never went to Bank Road. Significantly, she was displeased when the pursuer told her that he had returned to the defender: she was clearly upset that it might intrude upon her own relationship with the pursuer. It was suggested that the pursuer had no reason to lie to his daughter when he gave her to understand that he had not sought or effected a reconciliation with his wife. However, it appears to me that he had every reason to deceive her. He was in fact having an "on and off" affair with Susan Kinloch and Deborah Fleming knew about this. That relationship was not necessarily over when the relationship with Heather Mwembo began. In that context it appears to me that what he did was that he simply decided not to tell Deborah Fleming what was happening between him and his wife when he was staying at Bank Road. That fits the general pattern of the pursuer's behaviour, namely of telling people only what they needed to know. Douglas Hunter knew nothing at all except what the pursuer told him, other than that the pursuer gave a good deal of help and time to his elderly and ailing aunt; and that included staying overnight in the aunt's North Berwick house. However, he shed no light whatsoever upon the pursuer's activities in the house at Bank Road during the period that the pursuer spent after his return there.

[14] The witnesses led by the defender were of varying value on the central issues of fact. However, the evidence given by Martin Brown was highly relevant and was extremely powerful and convincing. Before and during the long separation in the 90s, he had asked his father, the pursuer, on many occasions about his behaviour, particularly in relation to his treatment of his wife and his association with other women. He was told that it was none of his business. He eventually followed the pursuer on one occasion and discovered the whereabouts and identity of Alison Crawshaw. He had a long talk with her and learned the details of that relationship. He informed his mother of what he had learned. Despite that, the pursuer on occasions denied to him that he was seeing Alison Crawshaw. (When the defender asked him who "Alison" was, he replied, "There's lots of Alisons".) The pursuer told Martin that he loved the defender; and he also repeated that what the pursuer did was none of this witness's business. Over the period commencing at the beginning of August 1996 this witness was able to give very clear evidence. He was able to recall dates by reference to his taking part in motorcycle races at East Fortune. He was a professional motor cycle rider. The return of the pursuer to the matrimonial home in the beginning of August was burned onto the witness's mind because he had just left an expensive racing bike in the garage. When he returned with his girlfriend to the house, the bike was lying in the street and the pursuer, who had arrived, announced that it was his garage, that he lived in the house and that he was not going to have the bike in his garage. This evidence was given spontaneously, clearly and very impressively. I believed this witness. The defender described the same incident; neither was challenged in cross-examination. This event was also to some extent corroborated by Isabel McEwan (now Mrs Thomson) who was in 1996 the girlfriend of the witness, Martin Brown. They both spent regular weekends together at the house at Bank Road and, as far as he and Isobel were concerned, the pursuer and the defender appeared to be living together as man and wife. Martin and Isobel were not there through the week. Furthermore, and I believe his clear and somewhat reluctant evidence on this, Martin was aware that the parties were having sexual relations. He could hear sounds from the matrimonial bedroom which indicated that that was so. He and his girlfriend were sleeping in an adjacent room. Furthermore the pursuer said to him that he was back, it was his house, and nothing else was any business of the witness. He concluded that his mother had forgiven the pursuer. As he put it, she was maybe "not in love with him" but she was prepared to love him. He himself felt that he was not welcome at the house because the pursuer regarded him as interfering. As a result he went less regularly. From time to time he said the pursuer was away. He did not know where he had gone. He received accounts from the defender of what the pursuer had told her to explain his absences; but he was unable to check the truth of these. According to this witness the situation continued more or less in the same way until at least the spring of 1997. Again he was able to fix the date by reference to the start of the motorbike racing season at the end of March or beginning of April 1997. The pursuer was less in evidence from that period onward. He finally was able to confirm that he saw even less of the pursuer from some time in 1998. In all essential details he was able to corroborate the defender. He was cross-examined at some length in relation to details of the evidence. It was suggested to him that he was lying in order to support his mother's position. I reject that entirely. He struck me as being clearly a witness of truth who was doing his best to help. Furthermore, insofar as she could, the witness Isabel McEwan (Mrs Thomson) supported his account of matters, although in less detail. She and the witness Martin Brown had ended their relationship in about 1998, and she has since married. She had absolutely no reason whatsoever to lie and I believe and accept her evidence. She said he was definitely there after early August 1996. She was a totally honest witness. There was also general support from the witness Kevin Brown. He was "irate" in 1997 when, at a time when the pursuer was living with the defender, the witness learned that the pursuer had gone into a pub in Ratho with another woman. He confronted the pursuer at the sawmill with a baseball bat. The pursuer said it was "F... all to do with him". I attach little importance to the evidence given by Stewart Brown. He still works at the sawmill with the pursuer and was obviously an extremely reluctant witness about the pursuer's behaviour. Nonetheless, even he expressed the view that the pursuer was staying with the defender after the break-up with Alison Crawshaw. He was not prepared to estimate how long that situation continued. He saw the pursuer there occasionally but could only presume that the pursuer was sleeping there overnight. He maintained that he had not asked the pursuer or spoken about it at all, partly because, as he put it, "he wouldn't have told me anyway". He also said this was not the type of thing he would discuss with the pursuer or the defender.

[15] In my opinion, based upon my observation of the witnesses, and principally of the pursuer and the defender, the overwhelming weight of the evidence is in favour of the defender's position that there was a full resumption of cohabitation after the pursuer returned to the house at the beginning of August 1996. There was slightly contradictory evidence about the precise date upon which that cohabitation became full, but there is no importance attached to that precise date: it was certainly within a few days of the beginning of August 1996. In my opinion, the parties were thereafter living together; they were sleeping in the same bed on many occasions, and having marital relations, albeit the pursuer was absent from the house from time to time, no doubt conducting a relationship with Susan Kinloch or engaged in other matters about which he chose to tell no one in the house.

[16] Upon the assumption that I were to hold as a matter of fact that the parties resumed cohabitation in August 1996, as I do, then Miss Wise, for the pursuer, accepted that the court had to fix a date as "the relevant date", namely the date when in point of fact the cohabitation ceased. She suggested that that date would be no later than the end of March 1997, being the time approximately when even the defender accepted that the pursuer was spending more than 50% of his time away from the matrimonial home. However Mr Bell, for the defender, maintained that realistically the earliest likely date was 30 June 1997. The defender's evidence was that the parties continued to share the same bed until June 1997 and there was ample evidence that the pursuer continued to come around the house quite frequently for some time thereafter. The full relationship with Heather Mwembo did not begin, according to the defender and Heather Mwembo herself, until towards the end of the year. Indeed the final break-up was not until March 1998 when the defender received the photographs earlier referred to and also the letter written by Susan Kinloch. I pause to note that in her submissions Miss Wise appeared to suggest that this letter was in some way a fake. The suggestion, for which there is not a shred of evidence, seemed to be that Susan Kinloch might have been persuaded at a much later date to create this document so that it could be used as a piece of false evidence to show that the cohabitation between the pursuer and the defender endured until early 1998. I reject that entirely. I just do not think that the defender would have been capable of forging the document, or having it forged, or uttering it knowing that it had been written at a different time from the time that she said it was written and delivered to her, namely March 1998. To do such a thing would have been wholly alien to her nature. The evidence led for the pursuer regarding Susan Kinloch and the period he allegedly stayed at her house would have carried more weight if she had been adduced as a witness.

[17] I accept the evidence showing that by June 1997 the pursuer was involved in an affair with Susan Kinloch and that he spent some time with her. I also accept that he began his sexual relationship with Heather Mwembo in the late Autumn of 1997. There is some hint in the letter, handwritten by Susan Kinloch in March 1998, that there was an overlap between these two relationships as, in that letter, Susan Kinloch refers to the pursuer's having sexual relations with somebody else, obviously Heather Mwembo. However, there is no satisfactory basis for holding that to be the true state of affairs. I am satisfied that the court's duty in this context is to determine as a matter of fact when the parties ceased to cohabit as man and wife. It may be impossible to put a precise date upon it. But I accept the main submission made on behalf of the defender that the relationship of husband and wife continued until the middle of the year. In the circumstances, I shall fix the relevant date as being 30 June 1997.

[18] I have not dealt in detail with many minor criticisms and points that were made by both parties in their submissions to me. It was pointed out that there were discrepancies between what was said on Record by either party what was said in evidence. I was entirely unimpressed by that submission; it is far from clear that either party had seen the pleadings or specifically endorsed them. It was pointed out that there were discrepancies between individual witnesses about who washed the pursuer's clothes or sheets, or who cooked what meals for whom and when, and other details of this kind. I recognize that various witnesses occasionally contradicted themselves or made mistakes about the dates and details of the events through which they lived in 1996/7, some six or seven years ago. I have not left these matters out of consideration. However, it is unnecessary to deal with each of these points individually. The important point is that the defender and Martin Brown appeared to me to be clearly honest, open, straightforward, spontaneous and clear witnesses. I believe their evidence. I regret that I have to reject the contradictory evidence by the pursuer, but it appeared to me that for years, at least in the area of his marriage, he has made a practice of being, at the very least, very economical with the truth. He told people only what he wanted them to know. If he had to respond to a particular allegation and it did not suit him to tell the truth, then he simply told a lie. I was not prepared to accept that his evidence cast any doubt upon the clear evidence of the defender.

[19] In the result, therefore the "relevant date" for the purposes of the Family Law (Scotland) Act 1985 is 30 June 1997. That ended a period of cohabitation that lasted for some eleven months. The parties were agreed that I should do no more than make a formal finding to that effect and insert that finding in the interlocutor following the Proof.