Scottish Court of Session Decisions

You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Scott v. McMillan [2004] ScotCS 138 (14 May 2004)
URL: http://www.bailii.org/scot/cases/ScotCS/2004/138.html
Cite as: [2004] ScotCS 138

[New search] [Help]

Scott v. McMillan [2004] ScotCS 138 (14 May 2004)

FIRST DIVISION, INNER HOUSE, COURT OF SESSION

Lord President

Lord Penrose

Lord Mackay of Drumadoon

XA42/03

OPINION OF THE COURT

delivered by THE LORD PRESIDENT

APPEAL FOR THE DEFENDER

From the Sheriffdom of

in the cause

NEILIANN MARGARET SCOTT or McMILLAN

Pursuer and Respondent;

against

JAMES GERARD McMILLAN

Defender and Appellant:

_______

Act: Sheldon; Wilson Terris (Morgans, Dunfermline) (Pursuer and Respondent)

Alt: Party (Defender and Appellant)

14 May 2004

[1] In this action of divorce the defender has appealed against an interlocutor of the sheriff dated 14 September 2001 in which he made an order under section 13 of the Matrimonial Homes (Family Protection)(Scotland) Act 1981, transferring to the pursuer the tenancy of the former matrimonial home at 69 Main Street, Cairneyhill, Fife.

[2] The sheriff found in fact that the parties lived together at that address, which was a local authority house, from June 1992 until their separation on 24 Aug 1997 (findings 3 and 7). After the latter date the pursuer resided with her mother at 24 Chapel Place, High Valleyfield, Fife. Shortly after the parties' separation the pursuer formed a relationship with James Hume, with whom she had sexual relations. Since April 2000 the pursuer and Mr Hume regularly stayed together overnight at his house from a Friday to a Saturday or a Saturday to a Sunday. The sheriff found in fact that while they intended to continue their relationship, neither of them intended to cohabit with the other in the foreseeable future (finding 12).

[3] The defender had suffered an accident at work in 1989. Since then, apart from a period of six months shortly after the accident, he had not been in employment. He was in receipt of social security benefits (finding 10). Because of the defender's injury the local authority had agreed to his obtaining the tenancy of the house at Cairneyhill, which was on two floors, in exchange for his surrendering of the tenancy of another house in Dunfermline which the parties had previously occupied. After their separation neither party made any effort to look for alternative accommodation, particularly another local authority house (finding 13). The pursuer had been in full-time employment during the whole of the marriage (finding 10).

[4] In his note the sheriff observed that the defender's physical condition was not sufficiently material for him to have refused the order for the transfer of the tenancy. It seemed to him that neither party was able, without some difficulty and inconvenience, to make satisfactory long-term arrangements for alternative accommodation. While the appellant was, according to his evidence, unable to work, the amount of his benefits was close to the income of the pursuer. The sheriff came to the view that the overriding factor in favour of granting the order was the behaviour of the defender. He was satisfied that this was the principal, if not the sole, reason for the breakdown of the marriage. He found in fact and in law that it was just and reasonable that the tenancy should be transferred.

[5] On 13 February 2003 the sheriff principal refused an appeal by the defender. He rejected submissions on his behalf that the sheriff had applied the wrong test and that he had inverted the onus of proof, which was that it was for the pursuer to show that an order for the transfer of the tenancy should be made.

[6] The defender appealed to this court, on the same grounds on which he had appealed to the sheriff principal. At the hearing of the appeal on 30 April 2004 the defender, who appeared without representation, did not present argument in support of the grounds of appeal. However, he made a number of statements as pertinent to the question of the transfer of the tenancy. He stated that the pursuer had undergone fertility treatment, for which the existence of a stable relationship had been required. She was now pregnant. She was spending between two and four days per week with Mr Hume. In order to avoid affecting his entitlement to state benefits, she was declaring that she was not living permanently with him.

[7] The defender also said that while the pursuer was in full-time employment, he was unable to work because of his disability. He emphasised that the pursuer herself would not have qualified for the house at Cairneyhill. He had obtained the tenancy of the house because of his medical condition. He had subsequently asked the local authority whether he could apply for another house, but was informed that, so long as the tenancy was in his name, he could not do so. He had nowhere to go. The pursuer, on the other hand, could have applied for such a tenancy at any time.

[8] The court continued the hearing to 14 May 2004 to enable Mr Sheldon, who appeared for the pursuer, to take instructions in regard to the allegations made by the defender. On 14 May Mr Sheldon informed the court that the pursuer had a permanent relationship with Mr Hume; that she had undergone IVF treatment, at a cost of £3150, which she had met. However, she had not used her relationship with Mr Hume in order to qualify for that treatment. Mr Sheldon emphasised that if the pursuer had left such treatment until she was much older, it would have been too late for it to be successful. The pursuer was some 10 weeks pregnant. Mr Sheldon said that the pursuer continued to live in her mother's house, although she stayed overnight with Mr Hume at weekends. Her mother's house, which had two bedrooms, was her permanent residence. She continued to be in full-time employment. She paid her mother a contribution for housekeeping, as a result of which her mother had to pay a full, rather than an abated, rent. Mr Hume had a two-bedroom house, where he lived with his daughters who were 19 and 20 years of age. Mr Sheldon added that he was not aware of the pursuer's plans for the future. It would be difficult for her to live with her child either at her mother's house or at that of Mr Hume.

[9] The information which is now before the court, and the answers to the questions which arise from that information, may lead the court to take the view that since the conclusion of the proof there has been a change of circumstances which would warrant it taking the exceptional course of allowing the appeal on the ground of res noviter. We wish to emphasise the word "may", since the test for interfering with a decision on that ground is a high one. We should not be understood as suggesting that the allowance of the appeal is likely.

[10] We propose to remit the cause to the Sheriff Principal in accordance with section 32(2) of the Court of Session Act 1988 for him to enquire into, and report to this court on, the following matters, namely, first, the extent to which the pursuer regularly stays with Mr Hume; secondly, the terms of any representations about the pursuer's relationship with Mr Hume which were made by the pursuer and Mr Hume in relation to her IVF treatment; thirdly, in view of the pregnancy of the pursuer, the extent of the current and prospective relationship between the pursuer and Mr Hume; and fourthly, whether they intend, or may in future decide, to live together, and, if so, under what domestic arrangements. The Sheriff Principal should include within his enquiry any other matters which arise out of the foregoing and which he considers may be of assistance to the court. For the purpose of executing his remit the Sheriff Principal should hear such evidence as he considers appropriate, and in his report state his findings in fact with his views on the credibility, reliability and value of the evidence which he has heard.