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Cite as: [2005] CSIH 78, [2005] ScotCS CSIH_78

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O'Mahony v. Connolly [2005] ScotCS CSIH_78 (18 November 2005)

FIRST DIVISION, INNER HOUSE, COURT OF SESSION

Lord President

Lady Cosgrove

Lord Reed

[2005CSIH78]

XA153/04

OPINION OF THE COURT

delivered by LADY COSGROVE

APPEAL

From the Sheriffdom of Lothian and Borders at Edinburgh

in the cause

MARY O'MAHONY or CONNOLLY

Pursuer;

against

JOHN JOSEPH CONNOLLY

Defender:

_______

Act: Wise, Q.C.; Drummond Miller (Pursuer and Respondent)

Alt: Party (Defender and Appellant)

18 November 2005

[1] The parties to this action were husband and wife. In 2004 the pursuer raised an action of divorce against the defender at Edinburgh Sheriff Court. After proof, the sheriff, by interlocutor dated 14 July 2004, divorced the defender from the pursuer; granted a residence order providing that the three children of the marriage then under the age of 16 years reside with the pursuer; found the defender entitled to contact with the said children during specified periods each year; and granted decree against the defender for payment to the pursuer of the sum of £200 per month as aliment for each of the said children. The sheriff also ordained the defender to transfer to the pursuer his whole right, title and interest as a joint heritable proprietor in the former matrimonial home at 20 Corstorphine Bank Avenue, Edinburgh, where she and the children have remained. He also found in fact and in law that, in terms of sections 9, 10 and 11 of the Family Law (Scotland) Act 1985, there were special circumstances justifying an unequal sharing of the matrimonial property. Various consequential findings follow from that but, for the purpose of these proceedings, it is only necessary to mention one of these, which is in the following terms:

"4(f) In the event of the house at 11 Heatherton Drive, South Douglas Road,

Cork being sold at a fair open market value price, then and only then should a payment of £55,422 be made from her share of the free proceeds thereof by the pursuer to the defender."

[2] By interlocutor of 5 March 2002 the defender was ordered to pay the pursuer £900 a month as interim aliment for herself and the children. At the time of the proof in the divorce action he was in arrears to the extent of about £14,300. The defender has paid no aliment to the pursuer in terms of the said interlocutor of 14 July 2004. The accrued arrears since that date amount to about £11,500.

[3] The defender has appealed to this court against the interlocutor of the sheriff. He appeared before us as a party litigant, his previous agents having withdrawn from acting for him. At the outset he sought to have the diet discharged on the ground that he had only received the Notes of Evidence on the previous day. On the second day he again moved for a discharge of the hearing, this time on the ground that he wished to obtain legal representation. We refused both motions in the following circumstances. The case was appointed for early disposal on 9 February 2005. The defender had attempted on two previous occasions to have the appeal hearing discharged. It had been made clear to him that the court considered that early disposal was desirable in the interests of both parties and the children of the marriage, not least because of accumulating arrears of aliment. It was clear that the defender had been advised as early as 8 March 2005 of the need to prepare appendices and have shorthand notes extended, if he so wished, but had not instructed the extension of the notes until late in October 2005. It was also clear that the defender had made no effort until the first day of the hearing before us to instruct new agents, even although he had been without representation since July 2004. In these circumstances we considered there was no merit in his motions for discharge.

[4] The appellant's submissions to us were wide-ranging. He sought to argue, in support of his first ground of appeal, that the sheriff had failed to have regard to the wishes of the children in pronouncing a residence order in favour of the pursuer. It was pointed out to him in this regard that he had not sought a residence order in his favour from the sheriff and that he could not raise this issue on appeal. He then proceeded to raise matters relative to the credibility and reliability of the evidence given by the pursuer at the proof. He claimed that his former wife had told lies in court. He also attempted to introduce fresh material. He was informed that the court could not entertain an attack on the credibility and reliability of witnesses since matters of fact were for the decision of the sheriff.

[5] With the assistance of the court, the defender was eventually able to present a submission that the sheriff's division of the matrimonial assets was unfair. At the time of their separation the parties were, and still are, joint owners of two properties, namely the former matrimonial home at 20 Corstorphine Bank Drive, Edinburgh and the house at 11 Heatherton Drive in Cork. The pursuer also owns a house, "Riverside, built on a plot of land at Letterlickey, Cork belonging to her family and given to her by her mother. The defender contended that the division of matrimonial property by the sheriff was grossly unfair to him as he ought to have been allowed to retain one of the properties in order to provide accommodation for the children who enjoy regular contact with him. He explained that he is currently living in rented accommodation in Eire which does not provide adequate family accommodation when the children visit him there. He was now left in the position where he had to seek a substantial mortgage or decide that he could no longer afford to see his children.

[6] The sheriff in his detailed and careful Note explains his approach to the division of the matrimonial property. He concludes that, in the circumstances of this case, the pursuer should be advantaged by receiving a greater than one half share in terms of section 10(1) of the Family Law (Scotland) Act 1985. He fully sets out his reasons for that conclusion, which include the fact that the youngest of the three children of the marriage suffers from a significant disability and will require support into adult life. Because of that child's needs, the pursuer can only work 20 hours a week. It appears to have been accepted by both sides at the proof that a section 9(1)(c) advantage to the pursuer could be comprised within the increase in values of the two properties, "Riverside" and 20 Corstorphine Bank Drive, between the relevant and the current dates, provided she made an appropriate compensating payment to preserve the equal sharing principle.

[7] Having scrutinised his approach, we can find no basis for asserting that the sheriff has in any way erred in law, and we are satisfied that the division of property arrived at by him is essentially fair and appropriate. We consider, however, that the method selected by the sheriff for giving effect to the division of property and, in particular, his finding 4(f) in respect of the house at 11 Heatherton Drive, Cork to which we have already referred, is not easily workable in practice. The sheriff explains that he thought it appropriate to make the pursuer's obligation to pay the sum specified in that finding (the equalising payment) only a contingent one. The effect of that was to put the onus on the defender to take the steps necessary to realise this asset, if he wished the compensatory payment from the pursuer. The defender has, for whatever reason, taken no action in this regard, even although his half share in that property and the equalising payment are sums that could be utilised by him to acquire accommodation. The pursuer has received no aliment whatsoever from the defender and, not unsurprisingly in these circumstances, has not pressed for a sale of the property, preferring to retain her half share in it as a security for the arrears.

[8] The house at 11 Heatherton Drive is, of course, a jointly owned asset and the sale envisaged in para. 4(f) would require the co-operation of both parties. The sheriff was aware of the potential difficulties and notes that the evidence before him was silent on the steps necessary for a joint owner of heritable property in Eire to force a sale.

[9] It is clear that difficulties between the parties have continued since the proof before the sheriff and continuing hostility was apparent at the hearing before us. In our opinion, it is essential in these circumstances in the interests of all concerned that there is now a clean break in respect of this jointly owned asset. We have concluded that this can best be achieved by this court now pronouncing an order requiring (a) the defender to execute the necessary disposition to transfer his half share in the said property at 11 Heatherton Drive forthwith to the pursuer and (b) the pursuer to proceed immediately thereafter with the sale of that property at a fair open market price, and to deposit the proceeds of sale at the disposal of this court. Once that has been done, the case will be put out for a further hearing.

[10] The parties will then each be entitled to a half share of the free proceeds of the sale and the pursuer will be required to pay the defender an equalising payment, as envisaged in the sheriff's finding 4(f). This payment should, in our view, be calculated on the basis of the relevant date valuations contained in the table at paragraph 10 of the sheriff's findings in fact. On that basis the total value of the matrimonial property (excluding 11 Heatherton Drive) assigned to the pursuer was £238,742, and to the defender £103,644. These figures bring out a differential of £135,098, one half of which is £67,549. That figure will be subject to the adjustments mentioned by the sheriff at page 16 of his judgment, the effect of which is to add to it the sum of £2,128. From that equalising figure of £69,677 will fall to be deducted the whole arrears of aliment due by the defender at that date.

[11] In the result, we shall vary the interlocutor of the sheriff to the extent only of deleting finding in fact and law 4(f) and by substituting therefor a finding in the terms we have indicated. Quoad ultra the appeal is refused.