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Cite as: [2004] ScotCS 233

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Cruickshank & Anor v. Dehvasati [2004] ScotCS 233 (27 October 2004)

SECOND DIVISION, INNER HOUSE, COURT OF SESSION

Lord Justice Clerk

Lord Osborne

Lord Kingarth

XA47/03

OPINION OF THE COURT

delivered by LORD KINGARTH

APPEAL

From the Sheriffdom of Grampian, Highland and Islands at Elgin

MRS. SHEENA MARGARET CRUICKSHANK or ZAKERI DEHVASATI (A.P.)

Pursuer and Respondent;

against

GHOLAM HOSSEIN ZAKERI DEHVASATI

Defender and Appellant:

_______

Act: Doohan; Balfour & Manson (Pursuer and Respondent)

Alt: Party (Defender and Appellant)

27 October 2004

[1] In this action, raised in the Sheriff Court at Elgin, the pursuer and respondent sought decree of divorce against the defender and appellant and an order for the transfer by him to her of his whole right, title and interest in the former matrimonial home at Aberlour which was jointly owned by the parties. In response the appellant craved an order for the sale of this property and for the disposal of the net free proceeds of sale as the court deemed fit. After proof on 15 and 16 November 2001, the sheriff, by interlocutor dated 11 March 2002, granted decree of divorce and decree also for the transfer of the appellant's share in the matrimonial home as sought by the respondent. He therefore refused the appellant's crave.

[2] The appellant appealed against that decision to the sheriff principal. On 25 February 2003 the sheriff principal, albeit for different reasons, refused the appeal and effectively adhered to the interlocutor of the sheriff. It is against that decision that the appellant now appeals.

[3] It is clear from the sheriff principal's decision that he proceeded on the basis of the findings in fact made by the sheriff. Some of these findings stem from an agreement entered into in a joint minute between the parties, who were both then represented before him. The sheriff found inter alia that the parties married on 29 July 1978 and there were four children of the marriage, namely Laila (23), Leisa (20), Sarah (17) and Pery (14). He found that the parties separated on 27 February 1993, the relevant date for the purposes of the Family Law (Scotland) Act 1985 ("the 1985 Act"). He further found that at the relevant date the matrimonial property consisted, in essence, of the respondent's personal retirement plan, having a surrender value of £6,122.53, heritable property belonging to the appellant in Iran valued at about £6,000 and the former matrimonial home at Lilybank, Aberlour which was in the joint names of the parties, having been purchased by them in 1985. It was found by the sheriff - in accordance with the joint minute - that it had a value of between £55,000 and £58,000 at the relevant date and a value as at January 2001 of between £58,000 and £64,000. He found that when the parties separated the pursuer remained in the matrimonial home with the parties' four daughters. By the time of the proof the parties' eldest daughter worked away from home but often returned to visit her mother and sisters. The second eldest daughter lived away from home during term time but stayed at home during the holidays. The two younger daughters were still at school and living in the matrimonial home. He found that in the event that the former matrimonial home was sold it would not be a realistic proposition for the respondent and the said children to go and live with her mother. He found that the children would be very upset by the sale of the former matrimonial home and that they wanted to remain living there. He also found that the respondent had, since the relevant date and before the proof (a period of nearly nine years), shouldered the whole burden of caring for the children and of maintaining the matrimonial property (although her mother gave her financial assistance when required). She was employed part-time, but it was found that had she not had the children to look after she would have been able to seek full-time employment. By contrast it was found that the appellant, although formerly employed as an officer in the Iranian Merchant Navy, had since the separation (after which he remained in Scotland) been unable to find employment, despite studying for, and obtaining, certain qualifications. It was found that he had certain medical problems.

[4] In explaining his decision to adhere to the interlocutor pronounced by the sheriff, the sheriff principal reached the view that, on the facts found, there existed special circumstances within the meaning of section 10(6) of the 1985 Act to justify other than equal sharing of the net value of the matrimonial property. In particular he made reference, in paragraphs 27-33 of his Opinion, to the fact that the respondent had, since the relevant date, undertaken the sole responsibility of caring for the children and maintaining the family home (at a time when significant expenditure was incurred), to the fact that had she not had the children to look after she would have been able to seek full-time employment and to the fact that the children strongly wished to continue to live in the family home. He considered, for the reasons given at paragraph 34 of his Opinion, that the order for the transfer of the appellant's share in the matrimonial home would be reasonable having regard to the resources of the parties, notwithstanding the existence of certain not insignificant debts which the appellant had incurred.

The appellant's submissions
[5] Before us the appellant appeared on his own behalf (as he had indeed before the sheriff principal). He sought, at some length, to argue - under reference to numerous letters and productions lodged in the course of the action and for the purposes of the appeal - that (so far as we understood it) he had been subjected to years of conspiracies by numbers of people, including, but not restricted to, his wife's family and her legal representatives, in particular since 1992 when he had lived permanently in the United Kingdom. These conspiracies were said to have involved criminality, racism and abuse at different levels. They were said to be proved by the documents which he had lodged.

[6] More particularly, he submitted that there had been a conspiracy or conspiracies in relation to the valuation of the matrimonial property for the purposes of the proof - in particular a conspiracy or conspiracies to reduce the value of the property by excluding the development value of adjoining land. Certain documentation produced had been forged, as was, it was submitted, proved by documentation now lodged.

[7] Lastly, as we understood it, he argued that the decision reached by the sheriff principal could not be said to have been fair. In particular it had not been his fault that he had been unable to obtain employment and to care for his children. He would be left, in essence, with nothing. The house in Iran could not properly be regarded as his, he being required to transfer it back to his mother (as maintained in a letter written by his own agents to his mother on 4 May 1994, now lodged). The wrong rate of exchange for Iranian Rials had, in any event, been applied in respect of its valuation. Reference was made to Piglowska v. Piglowski [1999] 2 FLR 763.

The respondent's submissions
[8] Counsel for the respondent argued that on the findings made by the sheriff the sheriff principal was entitled to reach the decision he did for the reasons he gave. That decision was made in respect of matters left, in substantial measure, to his discretion by the 1985 Act. Reference was made to Little v. Little 1990 S.L.T. 785, Jacques v. Jacques 1995 S.C. 327, Peacock v. Peacock 1993 S.C. 88, Cunniff v. Cunniff 1999 SC 537 and Coyle v. Coyle 2004 Fam L.R. 2.

Discussion
[9] Having considered carefully the submissions made to us we have come to the view that this appeal must be refused.

[10] However aggrieved the appellant may be by perceived conspiracies against him, reference to them cannot found a relevant ground of appeal against the sheriff principal's decision. There is, moreover, nothing in the documents lodged which could entitle this court to find such conspiracies "proved".

[11] As to the value of the matrimonial home, (which, it seems, did have an important part to play in the approach of the sheriff principal), this was the subject of agreement in the joint minute lodged before the sheriff. The appellant cannot now seek to reopen that question of fact in this appeal. There is again, moreover, nothing in the documentation which could, on the face of it, be said to amount to "proof" of the alleged conspiracy or conspiracies referred to.

[12] Lastly, having considered the full terms of the Opinion of the sheriff principal, we do not consider that it can be said that, on the facts found, he was not entitled to reach the decision which he did or that he erred in his approach. In these circumstances it is not open to this court to substitute a different conclusion, even if we were minded to do so. In relation to the particular matters which the appellant sought to raise, there is nothing in the sheriff principal's Opinion to indicate that he proceeded on the basis that the appellant's failure to maintain the children was in any way as a result of fault on his part (see in particular paragraph 8). We were not referred to any independent support for the appellant's claim in relation to the heritable property in Iran, and nothing in what he said amounted to a submission that, on the evidence before him, the sheriff was not entitled to make the findings which he did in relation to it (including his findings as to its value).