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Cite as: [2005] CSOH 25, [2005] ScotCS CSOH_25

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Karen Elizabeth Wetherhill Or Sheikh (Ap) v. Zahid Hussain Sheikh [2005] ScotCS CSOH_25 (10 February 2005)

OUTER HOUSE, COURT OF SESSION

[2005] CSOH 25

A3106/00

OPINION OF LORD PHILIP

in the cause

KAREN ELIZABETH WETHERHILL OR SHEIKH (A.P.)

Pursuer;

against

ZAHID HUSSAIN SHEIKH

Defender:

________________

Pursuer: Hayhow, Advocate; Stuart & Stuart, W.S.

Defender: Party

10 February 2005

[1] In this action the pursuer seeks declarator that she was lawfully married to the defender by cohabitation between 8 November 1985 and 3 November 1998, and the habit and repute arising therefrom.

[2] At the commencement of the diet of proof the defender appeared without representation and moved the Court to adjourn the proof. He explained that his solicitor had withdrawn from acting two weeks previously and that he did not have access to the file of papers relating to his case. A previous diet of proof had been discharged after his then solicitors had withdrawn because his legal aid application had been refused. Legal aid had subsequently been granted, but on his marriage to his present wife in May 2002, his financial circumstances required to be reassessed by the legal aid board. The implication was, as I understood it, that he was no longer legally aided.

[3] In opposing the motion, Mr Hayhow for the pursuer set out the history of the case. The summons had been signetted on 15 November 2000 and served on 27 November 2000. Defences were lodged on 22 January 2001 and in February 2001 the case was sisted to enable the defender to apply for legal aid. In March 2001 the defender's application for legal aid was refused on the merits. The sist was recalled on 14 March 2001. In April 2001 the Keeper of the Rolls enquired by letter whether the defender intended to insist in his defence. The defender must have responded in the affirmative because a diet of proof was subsequently fixed for 6 November 2001. On 24 September 2001 the defender's solicitors withdrew from acting. The defender was again asked if he intended to insist in his defence and he instructed fresh solicitors. On 2 November 2001 a motion was enrolled on his behalf for discharge of the diet of 6 November 2001. According to Mr Hayhow's contemporaneous note, at the hearing on the motion the defender's counsel said that a further legal aid application had been made in September 2001. No intimation of that application had however been made to the pursuer's agents. The defender's new solicitors however felt they were unable to conduct the proof "for financial reasons", and in any event had been unable to prepare for the proof in the week since they had been instructed. There was a defence to the action and they intended to adjust the pleadings. The diet was then discharged.

[4] Shortly thereafter the pursuer's agents received intimation of an application for legal aid. On 12 September 2002 legal aid was refused, but was subsequently granted on 19 November 2002 after a successful application for review. On 1 April 2003 a fresh diet of proof was fixed for 20 April 2004. The defender's solicitors proceeded to prepare for the proof. In late March 2004 the pursuer's agents were advised that the defender had consulted with counsel and that the proof would be proceeding. On 30 March 2004 the defender's new solicitors withdrew from acting. The defender then instructed a third firm of solicitors who enrolled a motion to discharge the proof. That motion was refused on 14 April 2004. The stated ground of refusal was that adequate time remained for the preparation of the case and, in any event, having regard to the time which had elapsed since the commencement of the action, the case should have been prepared by now. On 15 April 2004 the defender's third solicitors withdrew from acting.

[5] In relation to the defender's access to the relevant file of papers, his second solicitors had intimated that they were willing to hand over the papers to anyone acting on his behalf. The pursuer's agents had very recently been informed by the Scottish Legal Aid Board that a legal aid certificate in favour of the defender remained in existence. The action was four years old and the defender had been solely responsible for the delays. It was his own fault that he was not represented. In any event, his witnesses were present in court.

[6] In response the defender maintained that he had been told by his solicitor in April 2004 that legal aid had been "suspended". Otherwise he was not in a position to dispute the history set out by counsel for the pursuer. I was concerned that in support of his motion the defender had advanced an inaccurate and incomplete history of the case, and I concluded that it could be inferred from his conduct of the action to date that his objective was to delay indefinitely the resolution of the case to the prejudice of the pursuer. For the third time he had parted company with his solicitors shortly before a diet of proof and was seeking to have the diet discharged. The withdrawal of three separate sets of solicitors required some explanation. In two of the cases none was forthcoming. The pursuer had been ready to go to proof since 2001. She should not be required to wait any longer. The defender's witnesses were present. I accordingly refused the motion to adjourn and allowed the defender time to consider the file of papers held by his second solicitors. The proof then proceeded with the defender conducting his own case.

[7] Before considering the evidence, I think it is helpful at the outset to set out the legal requirements for constitution of marriage of by cohabitation with habit and repute. The law is summarised by Professor Clive in Husband & Wife, 4^th Edition, at paragraph 05.025:

"Cohabitation and repute do not in themselves constitute a marriage. Outward actings do not make a marriage. Mere consent does not in itself constitute a marriage either. Marriage requires both a mental element (mutual consent to marry) and an outward or factual element (nowadays either a regular marriage ceremony or cohabitation with habit and repute). Both are necessary. Neither is sufficient. If the outward element is proved, the consent will be presumed to have been exchanged, but this presumption can be rebutted. The theory of the present law on marriage by cohabitation with habit and repute is therefore that if a man and a woman cohabit as husband and wife in Scotland for a sufficient time and are generally held and reputed to be husband and wife and are free to marry each other, they will be presumed to have tacitly consented to be married and, if this presumption is not rebutted, will be legally married."

[8] A more detailed discussion of the law was recently entered into by Lord Nimmo Smith in Ackerman v Blackburn 2000 FamLR 35, in which he cited Campbell v Campbell (1866) 4M 876, affirmed in (1867) 5M (HL) 115, as having been consistently followed ever since. In that case Lord Justice Clerk Inglis, Lord Neaves and Lord Mure, at page 925 of the Court of Session report, explained the principle in this way:

"Of this kind of consent marriage by promise and subsequent copula is one example; and other example is the continued cohabitation of the parties as man and wife, with the repute, among all who know them, that such is their relation. It is important clearly to understand this principle, for there is here a risk of two opposite errors. On the one hand, it has sometimes been maintained that marriage is constituted by the cohabitation and repute, so that there could be no contradiction of it if the outward facts were certain; but it is clear that the outward facts operate merely as legal evidence of consent, which may be rebutted by counter-evidence, just as may be done in the case of mutual declaration. On the other hand, care must be taken not to consider cohabitation and repute merely as raising a presumption of marriage having been contracted by celebration or mutual declaration. They form in themselves a recognised and lawful mode of indicating consent. They raise a presumption of law that there has been consent, not, indeed, a praesumptio juris et de jure but a praesumptio juris, which, although it may be rebutted by proving that there was no consent at all, will not be rebutted by merely shewing that no consent had been expressly interchanged. If tacit consent is sufficient it is of no consequence that there is no express consent. The law infers mutual consent in the minds of the parties from their living so long together as man and wife, and allowing themselves to be reputed man and wife. It is not merely presumed that they were married in some other way. The law holds them to be married in this way, - that is, by means of the cohabitation and repute, which are a legitimate enunciation to themselves and others of their matrimonial consent, although never put in words."

[9] As to the nature and extent of the habit and repute, in Petrie v Petrie 1911 SC 360 Lord Johnston said at page 367, "the habit and repute require undoubtedly to be substantially unvarying and consistent. To say the least the evidence in favour of it must be so preponderating as to leave no substantial doubt." In Nicol v Bell 1954 SLT 314, Lord Patrick said at page 322:

"That repute need not be universal in order to permit of the inference being drawn that the parties consented to be man and wife, but it must be general, for cohabitation at bed and board may be that of man and wife, but it may also be that of keeper and mistress. Marriage is a grave matter, not lightly to be affirmed. The inference that cohabitation was that of man and wife will only be drawn if their behaviour has been such as to give rise to a repute which is substantially general and undivided that the parties were man and wife."

[10] The pursuer was born on 18 November 1960 and grew up in Yorkshire. She was living with her parents at their farm when, at the age of 17 or 18, she met the defender through her sister's friendship with his brother Arif. The sisters went out with the two brothers for a period, and a relationship developed between the pursuer and the defender. That relationship temporarily ceased in November 1978 when the defender and his brother, in a double ceremony, contracted arranged marriages with women of the Muslim faith. The defender married Aqeedat Batool. About six months after his marriage the defender began to visit the pursuer at her home and to meet her in York. A sexual relationship resumed between them. The pursuer attempted to conceal the relationship from her family, who were aware of the defender's marriage, but they learnt about it during 1979. At about the same time the defender moved to Scotland, but he maintained frequent contact with the pursuer in the course of which he asked her to come to live with him. The pursuer's family, in particular her father and mother, were opposed to the relationship, apparently on the ground that the defender was a Muslim and was coloured. Nevertheless the pursuer decided that she wanted to be with him, and in 1980 she left home and moved into a flat in Leeds where she lived with the defender for three or four months.

[11] The defender's brother Arif had established a grocery business in Edinburgh and with his encouragement the couple moved there in late 1980 or early 1981. The defender's parents and other members the family had also moved to Edinburgh, and his wife Aqeedat was at that time still living in Edinburgh with them. At first the pursuer and defender lived in a rented flat in Morningside which they shared with other people. Then for about six months they rented a bungalow at Cousland in Midlothian, where for the first time they lived alone together. They opened a shop in Dalkeith selling CB radios and accessories. As time went on they opened, in addition to the CB radio business, a kebab shop and a sports shop, both in Dalkeith, and also ran a stall at Sunday markets. The defender had overall control of the businesses and the pursuer worked with him and did the bookkeeping. Early in 1982 they purchased a house in Mayfield, Dalkeith the title to which was taken in the name of the defender. Their first child, Yusif, was born on 3 September 1982, and a second son, Adam, was born on 16 March 1984. In the Spring of 1986 they purchased a larger house at 14 John Humble Street, Mayfield, Dalkeith where they lived together until their separation on 3 November 1998. The pursuer continued to work in the businesses with the defender.

[12] In 1982 the defender's wife Aqeedat left Edinburgh with the son of the marriage and went to live in England. About the same time the pursuer resumed contact with the defender's family. They accepted her as his wife and treated her as such. The pursuer's evidence was that it was important to the defender's family that she and the defender were married. The defender's father adhered strictly to the laws of the Islamic religion and disapproved of cohabitation outside marriage. No member of the family ever enquired of her as to whether she and the defender were formally married, although on one occasion the defender's sister enquired as to the date of their wedding anniversary and appeared to be satisfied by a vague response from the pursuer. She was unable to explain how the family came to accept her as the defender's wife when he had been previously married. Her own family were aware that she was not married. She told them that she did not want to change her religion, her father having said that he would disown her if she did so.

[13] The pursuer's evidence was that after she and the defender began living together in Scotland she ceased using the name Wetherhill. She registered with the local doctor and dentist and took out motor insurance in the name of Karen Sheikh. Extracts from her medical records contained such entries as "she is married and lives with her husband". She and the defender ran the businesses together and she was known to all with whom they dealt as Karen Sheikh. The majority of their acquaintances knew her by that name. The defender habitually referred to her as his wife and introduced her as such to business contacts and to neighbours. When she was in hospital giving birth to the two boys she gave her name as Karen Sheikh. She thought that that was the decent thing to do as she was concerned about what other people might think. The defender knew this and was in favour of it. She was always known as Mrs Sheikh at the schools attended by the boys until 1998, when the records of St David's High School, Dalkeith were changed at her instigation after she and the defender separated.

[14] The births of both the parties' sons were registered by the defender. On the birth certificate of each of them the pursuer's name is given as Karen Elizabeth Sheikh and the date of marriage between her and the defender is given as 22 October 1980. No such marriage had taken place. The pursuer was unaware of how the defender was able to secure these false entries in the Register. She was nevertheless happy with the situation since she considered herself married to him and wanted to take his name. The defender and Aqeedat were divorced on 7 November 1985. The pursuer recalled being shown papers confirming the divorce early in 1986 after the parties had moved to John Humble Street.

[15] There were areas of her life in which she continued to use the name Wetherhill. She retained contact with her family in Yorkshire and maintained her interest in horses. She attended horse trials from time to time and at such events was known as Karen Wetherhill by people who had known her in her youth. In about 1991 she received the proceeds of an insurance policy which had been taken out by an aunt for her benefit in the name of Karen Wetherhill. The proceeds were paid to her by cheque drawn in favour of Karen Wetherhill and with the cheque she opened a building society account in that name. She also opened a Visa credit card account in that name as she was planning a visit to Australia, and did not have a credit card. That account no longer exists. Later, however, she opened a further building society account for the benefit of Yusif and Adam in the name of Karen Sheikh. In about 1997 she opened a bank account in the name of Karen Wetherhill in order to put money aside as she was already considering the possibility of separation.

[16] The pursuer's passport and driving licence remained in the name of Karen Wetherhill. She explained that in order to obtain a passport in her married name she would have had to produce a marriage certificate. She was of course unable to do so. Her driving licence pre-dated her relationship with the defender.

[17] At some time in or before 1989 the defender caused his name to be removed from the electoral roll with the intention of evading payment of the Community Charge. As a result the pursuer appeared on the roll as the sole occupant of 14 John Humble Street until 1995, when the defender's name reappeared on the roll. Between 1990 and 1993 the defender's businesses got into financial difficulties and the ownership of them, along with the title to the parties home, was transferred to the pursuer's name. At the same time the defender went abroad for six weeks. On 14 July 1992, after the transfer, the pursuer signed a Trust Deed for creditors in name of Karen Sheikh. She was sequestrated on 17 August 1992. She explained that she was prepared to subject herself to these procedures because at the time she loved the defender. The report of the trustee in sequestration recorded that she was not married but lived with her common law spouse. Her explanation for giving the trustee this information was that she wanted to be absolutely accurate because it was a legal matter. She was discharged in October 1998.

[18] The pursuer's evidence was that after the defender's divorce from Aqeedat he asked her to marry him on two occasions. Her response was that they should "put everything on hold" and carry on as they were. The defender wanted an Islamic religious ceremony and no other form of marriage was discussed. The pursuer was unwilling to change her religion or to undergo a religious ceremony as her father would disown her. She felt that she would be trapped if she were to convert to Islam and, among other things, would require to cover her head in public. Around the time the boys were born the defender gave her a ring which she wore on the ring finger of her left hand. After the defender's divorce she considered herself as his wife and was not concerned by the lack of a formal ceremony. She accepted the proposition, put to her in cross examination, that she called herself Mrs Sheikh or Miss Wetherhill as it suited her, but emphasised that the name Sheikh was the one that it predominantly suited her to use.

[19] The defender's brother Arif Sheikh was called as a witness by the pursuer. He is the manager of a kebab shop in Edinburgh. He said that he and the defender were born in Nairobi and came to the United Kingdom in 1973. They settled in York. He introduced the pursuer to the defender when he was going out with the pursuer's sister Helen. Subsequently, in late 1978, he and the defender were married in a double Islamic ceremony. Prior to that the defender had had a relationship with the pursuer. That relationship did not cease after his marriage. The defender and his wife Aqeedat moved to Edinburgh in 1978 or 1979 and a child was born of the marriage. Two months after the birth the defender left his wife in Edinburgh and was not seen again for three or four years. During that period he resumed his relationship with the pursuer. When the defender returned to Edinburgh he found that his wife had moved to England. He told Arif that he had married the pursuer and that he had always been in love with her. He had only married Aqeedat for the family name.

[20] All the defender's family in Edinburgh knew that he and the pursuer were married. He told them that they had been married at the big mosque in Birmingham. He had given her a Muslim name, Naffisa, and the family called her by that name. Arif had no reason to doubt the defender's word. If he, Arif, had known that he was not married to the pursuer he would not have spoken to him. Had the defender's father known that the parties were not married he would not have approved, since he had strong views against extramarital cohabitation. The defender's parents, brothers and sisters treated the pursuer in the same way as the wives of other sons of family were treated. The pursuer used the name Sheikh from the time she arrived in Edinburgh. The defender habitually described her as his wife and she called him her husband. The family had no doubt that the two sons of the marriage were legitimate. They were Shia Muslims. Children born out of wedlock and their parents were held in low esteem in that community. To have a child out of wedlock was unthinkable. If such a thing were to happen the family would go to a high priest and seek forgiveness, and the parents would be married under Islamic law. Nothing of that nature had occurred after the birth of the parties' sons.

[21] In late 2003 or early 2004 Arif met the defender in a cash and carry warehouse and the defender raised the subject of the present action. Arif urged him to pay the pursuer and the boys what they were due and was shocked when the defender said that the pursuer would first have to prove she was married to him. The thought that the parties were not married had never crossed Arif's mind. He was ashamed to have a brother like that. So far as he knew, his brothers and sisters were still not aware of the true situation.