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OUTER HOUSE, COURT OF SESSION
[2008] CSOH 122
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F190/07
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OPINION OF LADY CLARK OF CALTON
in the cause
COLIN JAMES CARRICK
Pursuer;
against
INESSA ZAUROVNA
KHAMZHUEVA or CARRICK
Defender:
________________
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Pursuer:
Wise Q.C.; HBJ Gateley Wareing
Defender: Party
26 August 2008
Procedure and
Pleadings
[1] This
case came before me for proof in respect of an action of divorce which was
raised by the pursuer in August 2006.
The proof was heard over four days.
The pursuer was represented by senior counsel. The defender, at various stages prior to
proof, had been advised by a number of different solicitors and on occasion
counsel was instructed. The defender
sought and was granted a discharge of the diet of proof following submissions
about her difficulties in obtaining representations. At the proof the defender was a party
litigant.
[2] The
pursuer sought decree of divorce against the defender on alternative
grounds. He sought divorce in conclusion
one, in respect that the parties' marriage had broken down irretrievably as
established by the parties' non-cohabitation for a period of more than
one year and the defender's consent to decree of divorce being
granted. Alternatively in
conclusion two, the defender sought divorce, in respect that the parties'
marriage had broken down irretrievably as established by the unreasonable
behaviour of the defender. The second
conclusion was supported by detailed averments in Article 3 of condescendence
relating to the defender's alleged behaviour.
Some of these averments related to alleged problems created by the
defender in relation to the business relationships of the pursuer. The defender contested these averments in
Answer 3 and made averments criticizing the pursuer's alleged behaviour. Before evidence commenced it became apparent,
from discussion with senior counsel for the pursuer and the defender at the Bar,
that there was no dispute that both parties wished to be divorced. There appeared to be a dispute about the
relevant date of non cohabitation but whatever the date, it was agreed that the
parties had not cohabited as husband and wife for more than the statutory
one year period. Senior counsel for
the pursuer stated that the second conclusion for the pursuer seeking divorce
based on averments about the alleged unreasonable behaviour of the defender was
not the pursuer's preferred option. She
pointed out there was no cross action by the defender seeking divorce on the
basis of any allegations in respect of the pursuer's behaviour. In Article 4 of condescendence, which
dealt with financial matters, the pursuer set out detailed averments about the
relevant date and his financial circumstances.
The defender's averments in Answer 4 were very brief and
stated:
"Admitted that
the defender is receiving aliment at the rate of £2000 per month. The defender seeks financial provision in
terms of the Family Law (Scotland)
Act 1985. The pursuer is called
upon to disclose all of his assets in order that a fair division of the assets
can be achieved."
[3] The
general issue about the scope of the proof having been raised and discussed at
the Bar, the defender was granted an adjournment to further consider her
position. Thereafter the defender stated
that she consented to divorce on the basis of one year non cohabitation. The appropriate consent form was signed by
her. The proof thereafter proceeded in respect
of averments in relation to conclusion one for the pursuer and the financial
conclusion for the defender which was the subject of averments in Article 4
and Answer 4. The relevant date of non
cohabitation was averred in the pleadings in Article 3 of condescendence. The pursuer averred that the parties had not
been together in the same dwelling since 3 December 2005. That date, senior counsel for the pursuer
contended was the relevant date for the purposes of considering financial
provision in terms of the Family Law (Scotland)
Act 1985 (hereinafter referred to as "the 1985 Act"). There was no alternative date averred in the
pleadings on behalf of the defender.
Although the pursuer set out detailed averments about financial
circumstances in Article 4 of condescendence, there was no general denial
of these averments in the defender's pleadings.
There were no positive alternative averments put forward by the defender
in relation to financial matters.
[4] Senior
counsel explained that her understanding of the defender's position was that
the defender, despite the absence of pleadings, contended that the relevant
date was September 2006. She did
not object to exploration of that issue and information had been made available
on behalf of the pursuer about assets of the pursuer and valuations at December 2005,
and September 2006. In addition
similar information had been provided in relation to the date of June 2006. Senior counsel said June 2006 might be
another date to consider as the relevant date.
[5] In
the course of evidence, senior counsel objected on a number of occasions to
lines of evidence relating to the pursuer's alleged behaviour about which the
defender sought to cross-examine or lead evidence. She submitted that there were no pleadings in
relation to financial matters to support such lines of evidence and also that
they were not relevant to the issues to be determined. Where the defender wished to insist on
pursuing these lines, I sustained the objections as I considered the reasons
for the objections were well founded. The
pleadings plainly limited the scope and relevancy of the issues left in
dispute. In relation to the relevant
date, there was evidence about the parties' perceptions and communications and
feelings in relation to the state of the marriage which was led without any
objection.
The evidence of the pursuer
[6] The pursuer aged 49
stated that he was a company director of various companies concerned with
construction and property development and had been so involved all his working
life.
[7] He
formally identified marriage certificate 6/1 of process and accepted that
the parties married at Maybole, Ayrshire on 28 January 2005.
He explained that he had met the defender in Moscow. They arranged to meet there following internet
contact between the parties. At that
time he understood she was employed to facilitate business introductions in the
Moscow area. She lived in poor circumstances in Moscow. Their relationship developed. With the pursuer's assistance, the defender
moved to the UK
and a visa was obtained for her as the parties wished to marry. Prior to the marriage they lived for a short period
at the pursuer's house at 25 Castle Road,
Dunure, Ayr. The
pursuer accepted that this accommodation was very poor and that the defender
did not wish to live in it. She made
that plain to him. As a result, prior to
the marriage, arrangements were made by the pursuer to obtain a new residential
caravan which was parked on the land at that address. After the marriage the parties lived together
in said residential caravan and never lived in the house. The pursuer explained
in general terms that after the marriage both parties experienced difficulties. He said that prior to the defender returning
to Russia for a
visit on 3 December 2005,
there were difficulties in their relationship.
He made reference to 6/30/3
of process. This was an e-mail sent to
him by the defender on 2 December 2005
referring to the defender's perception that she was making the pursuer unhappy
and other problems. The pursuer stated
that he had not lived with the defender as husband and wife since 3 December 2005. There had been no physical contact between
the parties after December 2005.
After that date the pursuer accepted that the parties remained in frequent
contact, particularly e-mail contact, which was often affectionate. He became concerned about difficulties. This included what he described as visa
difficulties and his uncertainty about the status of the parties' marriage. The defender had been previously married. The pursuer said he did not know whether she had
been divorced as there was no documentation.
The defender said that the tone of the parties' correspondence changed
in about June 2006. Since December 2005,
the pursuer said he had increasing concerns about the future of the
relationship. By June 2006 he
concluded that the relationship had no future.
He did not at that date express that view to the defender. At that date the e-mail correspondence was
illustrated by 6/30/4 of
process. The defender said she did not
want to contact the pursuer from that date.
The pursuer thought that the defender was organising her life and work
in Moscow. He was content with that. As a result of an e-mail request from the
pursuer dated 8 September 2006,
7/2/115 of process, the pursuer sent the defender approximately £10,000 to
purchase a car for her work. To his
surprise, he then discovered on 18 September 2006
that the defender had returned to the UK. He said she was hostile and demanding
money. There was no suggestion of a
resumption of marital relations and marital relations were not resumed. There was no reconciliation.
[8] After
the defender returned to the UK,
the pursuer said she demanded payment of bills and asked for cash on a sporadic
basis. The pursuer said he generally
gave her what she asked. In order to
formalise matters, the parties entered into an agreement in about May 2007. The defender asked for £2000 per month as interim aliment. The pursuer understood that the defender was
not working and agreed to pay her the amount for which she asked. He discovered a short time before the proof
that she was in paid employment. He
referred to 6/40 of process which set out the defender's income from the
British Red Cross from May 2007.
From December 2007 the defender received approximately £1000 per
month.
[9] The
pursuer was examined about his financial circumstances in relation to
matrimonial property. The pursuer
explained that, prior to his marriage, he was the owner of the heritable
property at 25 Castle Road,
Dunure, Ayr which was purchased in 1985. Reference was made to the Disposition in his
favour, 6/6 of process. He also owned a
flat in Glasgow purchased in
2003. He explained that the matrimonial
home was the caravan. This was owned by
a company and not by him. The caravan
was later sold and the proceeds were transferred to the company.
[10] During the marriage, the pursuer purchased a new build property
described in 19 of process, paragraph 3.
Under reference to 6/9, 6/10 and 6/11 of process he stated that the
purchase price of £172,800 was borrowed from Halifax Plc. Estate agents whom he consulted were
sceptical about whether the property would sell for £180,000. Even if it did, the fees involved would wipe
out any capital gain.
[11] Under reference to 19 of process paragraph 1, the pursuer
described the acquisition of shares by him in Construction & Property Recruitment
Limited for a sum of £40,000. This purchase
was funded by a loan from another company.
That loan is shown in the letter from the company secretary of HBS
Construction Limited, in 6/3 of process.
He explained that there had been a growth in value of the shareholding
as the company did relatively well. His
share in the increase in value is illustrated in 19 of process in paragraph 1
and in the summary section thereof. The
pursuer explained that because of the structure of the company and the debts
owed by the company, it would not necessarily be easy to realise the value of
the shares.
[12] The pursuer also acquired two shares in Construction &
Property Services Limited which represent 100% of the issued share holding. He explained that the company had purchased
two building plots under one title in about October 2005 at 27/29 Castle
Road Drive.
That property is adjacent to the heritable property which he had owned
since 1985. Subsequently there had been
difficulties with access to 27/29 Castle Road
from the main road because of title problems.
The purchase price had been borrowed but the value of the asset had
declined mainly because of the access problems.
He made reference to 6/7 to 6/8 of process. He estimated the value of the shares because
of the access problems and the outstanding debt at nil.
[13] During the marriage the pursuer said he held Standard Life
policies summarised in 19 of process, paragraph 4. He explained that these life policies had
been acquired prior to the marriage and were still held in joint names with his
previous wife, who has an interest in them.
A calculation of his half share interest at various possible relevant
dates are to be found in 19 of process.
[14] In relation to pension, the pursuer said that he had a
pre-existing pension in HVS Executive Limited employees' pension
plan. He explained that paragraph 5
of 19 of process shows the increase in value between the date of marriage and various
possible relevant dates.
[15] The pursuer explained that he held money in his sole name in
only one account and there was also a joint account in name of himself and the
defender. The sums held at various
possible relevant dates in the pursuer's account are demonstrated by 6/24 of
process and in the joint bank account at 6/25 of process. In relation to the joint bank account, the
pursuer stated that during the marriage the defender's earnings as a company
secretary were paid directly into the joint account. She operated a Morgan Stanley credit card
which was a second card on the pursuer's credit account and also an Egg credit card. The pursuer said he did not take money from
the joint account at all. He
occasionally paid money into the joint account.
The defender's credit card debts on her Egg credit card were repaid
through the joint account. He repaid
Morgan Stanley directly. These credit
cards were stopped by him some time after the defender went to Russia.
[16] The pursuer also received 777 shares in Standard Life plc
issued on 26 July 2006. Reference was made to 6/12 and 6/13 of
process and the value at various relevant dates is set out in 19 of
process.
[17] The pursuer explained that he did have substantial assets
acquired before the marriage in the form of his interest in Henry Boot (Scotland)
Construction Limited. He acquired an
ownership interest in 2003. The shares
he acquired in 2003 are still owned by him.
[18] He did not acquire any motor vehicles during the marriage but
had a Ferrari acquired in April 2003.
Reference was made to 6/26 to 6/29 of process.
[19] He also made reference to Schedule 6/31 of process. This was a schedule of payments which had
been made to the defender by the pursuer since December 2005. At the date of the proof the pursuer said he
had paid to the defender approximately £60,000.
He explained that even the payments which were made to the defender as
salary were indirectly at his expense as these payments had been deducted from
his earnings. He accepted that this had
given the parties some small tax advantage.
[20] In summary, the pursuer said that the defender brought no
financial assets to the marriage. He had
not made any economic gain as a result of her assistance. He had provided substantial funding to her
not only during the period they lived together but thereafter. He was still paying aliment to her. He did not dispute that he was in a position
to pay whatever sum the Court considered appropriate in relation to capital or
aliment payments. His preferred solution
was a clean break.
[21] In cross-examination, the pursuer accepted that the parties had
met for the first time in Russia
by prior arrangement and that the defender had left Russia
to come to the UK
as a result of their relationship. It
became clear from the line of cross-examination that the defender contended
that the date of non-cohabitation was 22 September 2006. The pursuer accepted that in December 2005,
the principal reason that the defender left the UK
to return to Russia
was to attend a funeral and that she had a return ticket. There had been communication between the
parties that the pursuer would join the defender in Russia. The pursuer accepted that there was
affectionate correspondence by e-mail. He
stated that in the defender's absence, he was able to explore what he thought
were irregularities about her previous divorce and her immigration status. He accepted that there was ongoing discussion
about this between the parties reflected in the e-mails. He also accepted that the parties had
discussed remarriage if there were continuing divorce difficulties which were
unresolved. The pursuer accepted that
for a period after December 2005 it was possible that the parties might
continue in marriage. He said he was
trying to keep the defender happy until he could find a solution. He became increasingly concerned about
cultural and other differences between the parties. He became concerned about what he thought
were threats by the defender to damage his business.
[22] The pursuer accepted that he was not particularly concerned
about the date of non-cohabitation provided parties were able to resolve
financial matters. He would have
accepted September 2006 to facilitate a settlement. He said that he had made every effort to
resolve matters but the defender rejected proposed settlements. She had a variety of lawyers. Reference was made to 7/34/7 and 7/2/135 of
process.
[23] Under reference to 7/38 to 7/40 of process, the pursuer did not
accept that he had ownership interests which he had not declared. He explained that the fact his name was shown
in company documents as a director did not mean that he was an owner of the
business. In relation to 7/58, the
pursuer explained the inter-company transactions and that draft accounts
existed which in due course when finalised would be filed. The pursuer explained that he changed company
names because he had no option as his original use of the Henry Boot name was
under licence. He also explained that it
was long standing practice to use shell companies for individual projects. He explained that 7/62 had been prepared to
assist the pursuer and her advisers.
This gave full details of the companies in which the pursuer was a
director and/or shareholder and details of the various companies. The pursuer accepted that the arrangements
were fairly complex but not unusual in his type of business. He stated that the pursuer and his advisers
had offered a meeting to the pursuer and her advisers to give more detailed
information. That had been offered on
more than one occasion but because of the defender's attitude had never
taken place. The pursuer said that the
list of companies in 7/62 provided all the information necessary for any search
to be made in Company House. The pursuer
rejected the suggestion that his business arrangements were made in some way to
defeat the financial claims of the defender.
He stated that all the arrangements he made were for sound business
reasons.
[24] The defender put to the pursuer Scotsman article dated 30 August 2007,
7/41/2 of process which made reference to a Scottish contract and Henry Boot
making a pre-tax profit of £21.9 million pounds in the six month period to
June 2007. The pursuer stated that
he had already explained on another occasion to the defender that this article
referred to Henry Boot plc. Henry Boot
plc, he stated, is an entirely separate company. The pursuer said he had nothing to do with
Henry Boot plc. Henry Boot plc
was a major company in which he said he had no financial interest.
[25] Reference was made to documents in 7/55/7/56 of process. These referred to the Directors report and
various financial statements for the years ended April 2005 and April 2006
of Henry Boot Scotland Limited, a company in which the pursuer admitted he was
a director. The pursuer denied that he
had any secret accounts. He said he did
not have shares in 20 companies as the defender suggested. He stated that he and his advisers had done
everything possible to explain to the defender the nature and value of matrimonial
assets. The shareholdings which he acquired
prior to the date of the marriage were not disclosed. All matrimonial assets had been declared.
[26] The pursuer was questioned by the defender about the history of
the purchase of the land at 27/29 Castle Road Drive. He accepted that the offer had been in the
name of his mother. He explained that he
did not wish to alert the owner that a developer was interested in the land. The land was purchased in the name of
Construction & Property Services Limited as the pursuer did not have the
money himself to buy the property. The
company was able to obtain a loan and that was all shown in the accounts which
are drawn up by professional accountants.
He accepted that there had been discussions between the pursuer and the
defender about the possibilities of planning consent and eventually perhaps
building a house for the parties on the land.
The pursuer said there were many potential possibilities but the land
was still owned by the company and undeveloped.
There was also an unexpected access problem which was unresolved. He accepted that there was no independent
valuation. He said that he had discussed
the matter informally with a valuer who had valued it at approximately
£99,000. He considered that the site was
worth more and the book value shown in the accounts was £124,000. The pursuer said whatever its value, it was
an asset owned by a company using borrowed money.
[27] The defender wished to put to the pursuer 7/59 of process. This was a "without prejudice" offer. I sustained an objection by senior counsel
for the pursuer. In my opinion this was
privileged communications in the course of negotiations.
[28] In relation to the joint account, the pursuer accepted that the
defender had expressed a wish for financial independence. He considered that she had financial
independence as she had been free to spend money on two credit cards. As he had given up part of his salary, she also
received a salary into the joint account.
After the defender went to Russia,
the pursuer accepted that he withdrew money from the joint account. He explained that all the money from the
joint account was received by the defender directly or indirectly. For example, for a period some of her credit
card debts continued to be paid through the joint account. In relation to the defender's request for a
car, the pursuer accepted that there had been some early discussions about a
car but pointed out that the reason he sent the defender £10,000 was because
she had asked him by e-mail for a car.
[29] In relation to aliment, the pursuer accepted that he had signed
an agreement about this. Prior to that,
he said he provided support to the defender when the defender identified her
needs. At various dates she identified
various expenses she incurred. She
presented a figure of £2,000 seeking interim aliment and that figure was agreed. The pursuer accepted that he had paid aliment
of £2,000 since May 2007. He did
not know that the defender was in work and earning when he paid her that
aliment. The pursuer said that the
defender had many ways to earn a living.
He accepted that it would take the defender some years to become a GP
and said that was a matter for her. He
accepted that there had been no need for her to work during the marriage but said
that did not mean that she was now entitled to a high standard of living. He had agreed to aliment because of her erratic
demands, some of which he interpreted as threats. He thought it was right to try to regularise
the position pre-divorce. The amount
which she asked for was simply conceded.
The pursuer had never disputed that the defender was entitled to some
financial settlement. He accepted that
he had brought the defender to the UK,
that she had lived with him and he had supported her. He did not accept that he had not made a full
disclosure of matrimonial property. He
explained that the profits of the companies did not all come to him. He said he had explained all the post
marriage company arrangements.
The evidence of the pursuer's mother
[30] Mrs Elizabeth Carrick,
the mother of the pursuer, said that she saw the pursuer and the defender prior
to the marriage on many occasions. She
thought then that the defender was a pleasant, nice girl. After the marriage she saw less of the parties. Towards Christmas 2005, the defender
went back to Russia. Mrs Carrick thought that she had gone
back to spend time with her family. She
phoned the defender's mobile phone in January/February 2006 but it was not
answered. The pursuer said to her that
he did not know when the defender was coming back. The defender came back in the autumn of 2006
with no advance warning.
Mrs Carrick got a phone call from the defender. She thought that the defender was in Russia. She was angry with the defender for the
distress that she had caused. Mrs Carrick
"more or less told her to get lost". In
the middle of 2006 the pursuer said to her that the marriage was over. She thought there was no prospect of a
reconciliation. In cross-examination, Mrs Carrick
accepted that she was unaware of any arrangement for the pursuer to join the
defender in Russia. Mrs Carrick accepted that she had not
seen the e-mail correspondence between the parties and that she did not know
the reasons why the defender did not come back.
She accepted that she did not know about the details of the parties'
relationship.
[31] The defender put to Mrs Carrick 7/71 of process. I sustained an objection to questioning about
this document which was not put to the pursuer and in my opinion was irrelevant
to the financial issues on record.
Evidence of the defender
[32] The defender spoke to 7/63 of
process. She said that by December 2005
the pursuer and defender were a family.
She had been brought into a horrible house prior to the marriage. She considered that house was rancid and
unsanitary. After the marriage the
parties lived in a caravan. The defender
was critical of the caravan accommodation.
She said that she was promised by the pursuer that they would live in a
new house. This did not happen. She left
in December 2005 for Moscow. This was a visit only. There were 150 e-mails between the
parties. Shortly after she arrived in Moscow
she received 7/2/8 of
process when the pursuer first raised an alleged problem about her visa. There was an objection to the line of
evidence if the defender was attempting to suggest that the pursuer prevented
the defender from returning to the UK
on a false basis. I sustained this objection. There were no pleadings to support it in
relation to the financial conclusions.
The defender said the pursuer repeatedly referred to problems about her
visa and her divorce from a previous marriage.
It was all very upsetting. She
was stuck in Russia.
The defender thought these were real
problems and she was very distressed.
She thought there were problems about her returning to the UK
and that was the reason she did not return.
The defender explained that some time in the early summer of 2006 she
made enquiries and discovered that there was nothing to prevent her returning
to the UK. She accepted that she had asked the pursuer
for money for a car. She then used the
money for other purposes including her unannounced return to the UK. She consulted solicitors. She went to the caravan but there was no one
there. She phoned Mrs Carrick and
got no assistance. She went to the
police. The pursuer arranged a hotel for
her. She was critical of that. The parties met for the first time since
December 2005 on 22 September 2006. She wanted explanations from the pursuer. She felt that he had deceived her and that he
had raised issues about the validity of the marriage and problems with her visa
which were untrue. She accepted that
since 3 December 2005
she had never lived with the pursuer or had sexual relations with him. She said she had been shocked and distressed
by the pursuer's behaviour and lack of explanations. She said that the marriage was impossible
after 22 September 2006. She had lost all trust in him. She felt he had been deceiving her since shortly
after she left in December 2005. She
considered that 22 September 2006
was the date that they separated.
[33] In relation to financial matters she criticised the pursuer's
evidence and stated that the draft accounts which he had described had not been
produced. She said that there was no
professional valuation of the apartment in Stoke-on-Trent
referred to in paragraph 3 of 19 of process. She said that the pursuer had not given a
full picture of the companies. She
stated that she had never had access to the pursuer's bank account during the
marriage. She had no clear picture of
his company appointments or business structures. In relation to the joint bank account, she
said that she had no access to that account.
She was only able to see the account on the internet. She said that her salary and expenses were
completely controlled by the pursuer and that she was only able to use credit
cards. She said that she had no clear
picture about Construction and Property Marketing Company. She did not have any information about
pensions or the pursuer's shares in Standard Life. She said that she had some information about
a flat in Edinburgh as she and the
pursuer gave someone the keys to the flat.
She also cleaned a flat in Glasgow
on one occasion when the pursuer gave her £200.
She gave no further information about these properties or the relevance
to her claim. In relation to the
property at 27/29 Castle Road,
the defender stated that there were no official documents confirming the
valuation and no clear picture of the lands purchased. She said that she had never had precise
information about the assets of the pursuer during the marriage. There had been no independent valuations of
these assets produced by the pursuer.
Any valuations had been prepared by the pursuer's employees and
accountants. These were not independent. The defender said that she did not have funds
to provide independent valuations and was not able to afford to instruct
forensic accountants to investigate the pursuer's assets. She thought that was essential. The defender said she had done research in
Companies House and the Land Registry and had obtained a lot of useful
information but as she had been unable to fund forensic accountants, she could
not be certain of the pursuer's assets. She
claimed that the pursuer had assets which she did not know about. She complained that she had not seen his tax
accounts or bank statements and that the productions lodged did not show a full
picture of his assets.
[34] The defender made a motion for recovery of documents. She was critical of solicitors, who when they
had been acting for her, had refused to seek recovery of certain
documents. This motion was opposed. I refused to entertain a verbal motion for recovery
of documents, as the motion was far too late as it was in the course of the
proof when evidence had been led.
[35] In relation to aliment the defender accepted that she received
£2,000 per month after the agreement.
She explained that she lived in a rented flat. She had to pay solicitors and she had a loan
which she had obtained to pay solicitors.
She said her employment contract with British Red Cross would expire in
the summer of 2008. She wished to study to
become a GP. She did not have an
alternative job. She considered that she
needed £2,000 per month to enable her to have accommodation and pay her living
expenses and basic needs.
[36] The defender said, under reference to the press article 7/41/2
of process, that she considered that the pursuer may be involved in this
company and there is no clear picture of his profits.
[37] In cross examination the defender accepted that she had signed
the form of consent, 18 of process. She
explained that she had qualified as a medical practitioner in Russia
during the years 1987/1995 and graduated from the State
University in the Republic of
Kabardino-Balkarai. Her date of birth is
27.12.69. She practiced for a short time
as a medical practitioner and worked in a clinic until 1998. The economic circumstances were poor and the
job was very badly paid. As a result she
sought other employment in Russia. She accepted that by 2004 she had not been
involved in medical work for 6 years because she had obtained better paid
work in Russia. She was living in rented accommodation. She always had jobs with a satisfactory salary
in Russian terms. She said she had a
good standard of living in Russia. She lived in rented accommodation which she
accepted was very small. She also used
the office of her company in part for residential purposes.
[38] Before the marriage she lived for a few months in the house at 25 Castle
Road. She
regarded that as unacceptable accommodation and below her standard of living in
Russia. After the marriage she and the pursuer lived
in a residential caravan on land at 25 Castle
Road. She
was critical of the caravan accommodation which had limited space. She said it did not provide comfortable and
acceptable accommodation. She knew that
the defender had financial means but she had never known the extent of his
income and capital. She accepted that
she had no significant assets.
[39] She did not accept that the marriage had serious problems
before she left Scotland
in December 2005. She accepted that
there were problems and that the pursuer seemed distant even before she left
for Russia. She accepted that she did not think it made
sense to be in a marriage that was unhappy.
She had noticed a change in mood of the purser and that was why she
raised her concerns with him. He denied
at the time that the problem was with the marriage. She did not accept there were any serious problems
before 2005. She said that the tone of
the e-mails between December 2005 and June 2006 was
affectionate. In June 2006 she sent
three e-mails to sever contact. That was
because she thought at the time she had caused the problems over the visa. She accepted she had sent e-mail 6/30/4, 5 and 7. In an e-mail in early September 2006, 7/2/115
of process, she accepted that she told the pursuer that she had a good job
offer as a director's assistant. She
accepted that she had no intention to buy a car and that it was a ruse to get
the money and get back to the UK. She knew by this time that the pursuer did
not want her back. She said that the job offer was true although she had lied
about the intention to buy a car. She
said that her responses had to be seen in the context that up to about August
she had believed that the visa problems had been real. She said that she then discovered that her
visa was not suspended and she took the view that the pursuer had by false
pretences kept her out of the UK. She lost all trust in him.
[40] In relation to the capital assets of the pursuer, she did not
accept that the evidence of the pursuer was true. She accepted that offers had been made to her
to meet with the pursuer with her advisers.
She said that her solicitor had rejected this as the pursuer's
accountants Lizars were not independent accountants. None of the advisers were independent of the
pursuer. They had all worked for the
pursuer and the pursuer had business relationships with the accountants.
[41] In relation to her own earnings, the defender accepted that
since December 2007 she had a full time contract of 37 hours per week
providing social care and assistance to disabled people. She assisted students with disabilities who
were working at college. She said her
contract was due to expire at the end of June 2008. She enjoyed the work. She had a good relationship with the students
and colleagues. She thought that a reference
would be provided. She accepted that
there was nothing preventing her from returning to work in Russia
but she wanted to stay in the UK. She did not want to work as a doctor in Russia
as it was still badly paid. She thought
that she could have full financial independence if she retrained as a GP in the
UK, but that
would take some years and would involve substantial costs. She required support during that period from
the pursuer.
[42] The defender accepted that until December 2005 the pursuer
had supported her and that thereafter her living expenses had been met by the
pursuer. She said she had a difficult 7
or 8 months until regular aliment was agreed. She accepted that she had received £10,000
which the pursuer had sent her to purchase a car and had used the money for
other things. She did not accept that
some £60,000 had been paid to her in respect of her debts. She accepted that payments had been made but
said she was not in a position to confirm the total.
[43] The defender's evidence was that she did not accept the
evidence given by the pursuer about his financial circumstances. She would not agree with the pursuer under
any circumstances. She said she feared
that the pursuer was hiding property from her.
She did not consider that he had made a full disclosure of the
assets. The pursuer had lost her trust
as a result of what she considered to be false information and representations
made to her by the pursuer about her visa and in relation to her divorce from a
previous marriage.
Submissions on behalf of the pursuer
[44] In relation to the divorce,
senior counsel for the pursuer sought divorce in terms of the first conclusion.
[45] In relation to the financial conclusion, senior counsel for the
pursuer submitted that the statutory framework was to be found in the Family
Law (Scotland)
Act 1985. That the starting point
was to determine the "relevant date" in terms of section 10(3). This provides:
"In this section
'the relevant date' means whichever is the earlier of -
(a) .... the date on which the persons ceased to
cohabit ...".
The primary submission of senior
counsel was that it was plain from the evidence that the cessation of
cohabitation was in December 2005.
It was plain from the evidence that the parties had never lived together
as husband and wife or had marital relationships since 3 December 2005 when the defender left Scotland
and went to Russia. She referred to Clive, Husband and Wife 4th Edition paras.21-070 and
21-075. She prayed in aid Banks v Banks 2005 FamLR 116 at page 123, and p. 128. Senior counsel accepted that in some cases
where there was no complete physical separation, the mental attitude of the
parties and general circumstances might be relevant in deciding the relevant
date. She distinguished the approach adopted
in the English jurisdiction illustrated in Santos v Santos [1972]
Fam. 247. She pointed out that the
legislation in England
was different and focused on separation not cohabitation.
[46] She submitted that even if she was wrong in her primary submission,
the evidence plainly established that by about June 2006 both parties and
certainly the defender were not prepared mentally to continue with the
marriage. She referred to the history of
difficulties in the marriage dating from at least December 2005. Whatever the merits of the problems about the
visa and the previous marriage of the defender, it was plain from the evidence
that by about June 2006 the communications between the parties
changed. She referred to the email
correspondence 6/34 - 6/37. The parties
were getting on with their lives. She
accepted that the pursuer continued to give some financial support to the
defender including the sum of £10,000 for a car which the defender had
requested. The pursuer's attitude in his
evidence was that he did not want to upset the defender who was getting on with
her life in Russia. Counsel for the pursuer accepted that he did
not in terms say that the marriage was over until September 2006 after the
defender returned to Scotland. Referring to the defender's return, senior
counsel for the pursuer submitted that neither party had suggested in evidence
that the return to Scotland
was for the purposes of reconciliation.
Indeed the defender accepted that she came without warning. Her evidence was that she had come to a view
that the pursuer since about December 2005 had deliberately tried to keep
her away from Scotland. She had lost trust in him. Senior counsel submitted that the pursuer had
accepted that in the context of negotiations, the date of separation was not
important to him but that was now irrelevant.
If the proper legal approach was applied to the evidence, there could be
only one date, that is 3 December 2005,
identified as the relevant date. The
date of September 2006 which the defender proposed was not the relevant date,
even if a much wider approach was adopted taking into account the mental
element of the parties and the continuing financial support by the pursuer of
the defender. If that wider approach was
adopted, the evidence painted to June 2006 possibly but certainly not
September 2006.
[47] In relation to the statutory provisions regulating financial
provision in divorce, senior counsel for the pursuer referred to section 8
of the 1985 Act. She pointed out
the absence of any relevant averments to found a case for the defender. As a pragmatic solution, the pursuer's
advisers had provided calculations summarised in 19 of process identifying
assets as matrimonial property and the value thereof at various possible dates,
namely December 2005, June 2006 and September 2006. She submitted that the pursuer was not
seeking to avoid or reduce any payment considered appropriate by the Court in
terms of the relevant legislation. His
position was that he was prepared to pay any such payment and therefor, the
extent of his present resources, other than matrimonial property, was
irrelevant. She referred to Welsh v Welsh 1994 S.L.T.828. Senior
counsel for the pursuer accepted that the pursuer had assets acquired before
the marriage which were not matrimonial property which had not been
disclosed. She submitted that in the
context of the case this was a correct approach.
[48] Senior counsel for the pursuer referred to the principles to be
applied under the 1985 Act in terms of section 9. She accepted that section 9(a) applied
and that the net value of the matrimonial property should be shared fairly
between the parties to the marriage. She
referred to the definition of "matrimonial property" in section 10(4)
which states "matrimonial property" means all the property belonging to the
parties or either of them at the relevant date which was acquired by them or
him (otherwise than by way of gift or succession from a third party) - (a)
before the marriage for use by them as a family home, or as furniture, or
plenishings for such house; or (b)
during the marriage but before the relevant date. Senior counsel submitted that section 10(1)
means that there is a presumption of equality which could be departed from, if
there are special circumstances to be determined in the Court's
discretion. She referred to Jacques v Jacques 1997 S.C.(H.L.) 20, Lord Clyde at page 24. She submitted that the shortness of the
marriage is a factor under reference to Kerrigan
v Kerrigan 1998 S.C.L.R.603. She did not submit that the shortness of the
marriage in this case should necessarily result in a substantially unequal
division. She prayed in aid Whittome v Whittome (No.1) 1994 S.L.T.114 at page 126C-D. Lord Osborne stated:
"As I understand
the policy of that part of the Act of 1985 which relates to the making of a
financial provision on divorce, which includes the fair sharing of 'matrimonial
property', is to the effect that, in general, the wealth acquired by the
parties, subject to the statutory exclusion, or generated by their activity and
efforts during the course of their life together, is, in the absence of
'special circumstances', to be shared equally".
[49] Senior counsel for the pursuer submitted that in relation to
the claim for a capital sum, the proper approach was for the Court to decide
the net value of the matrimonial property and divide it fairly between the
parties.
[50] Senior counsel referred to the oral evidence given by the
pursuer in which he spoke to No. 19 of process and various supporting
documents to explain the various items of matrimonial property and valuations
thereof. Senior counsel submitted that
the matrimonial property was not high in value.
The defender had stated in her evidence that there were hidden and
concealed matrimonial assets but she had given no factual basis to support
that. It was submitted that although the
defender appeared as a party litigant, it was plain from the evidence that she
had instructed at different times various solicitors and counsel. She had accepted in evidence that she had refused
to meet Lizars and the pursuer's solicitors when they offered to explain and provide
assistance in understanding the documentation which they had prepared to assist
the defender and the Court. The pursuer
had been allowed to lodge 7/62 of process late.
This was a document which had been prepared on behalf of the pursuer to
assist the defender and her agents in understanding the pursuer's involvement
in various companies. In view of the
shortness of the marriage, the absence of any evidence that the defender made
any significance economic contribution and against a background that she had
received very substantial sums from the pursuer, it would be impossible to
justify giving the pursuer more than a half share of the value of the
matrimonial property at the relevant date.
[51] Senior counsel then turned to deal with the defender's claim
for "maintenance". She accepted that it
was still competent under the 1985 Act for a Court to award periodical
allowance. She referred to sections 8
and 13 of the 1985 Act. She
submitted that the philosophy of the law was now to promote a "clean break" and
that in terms of section 13(2) the Court shall not make a order for a
periodical allowance unless:
"(a) the order is justified by principles set
out in paragraph (c), (d) or (e) of section 9(1) of this Act; and
(b) it is
satisfied that an order for payment of a capital sum or for transfer of
property or pension sharing order under that section would be inappropriate or
insufficient to satisfy the requirements of the said section 8(2)".
She prayed in aid W v W
2004 Fam.L.R.54.
[52] Senior counsel for the pursuer submitted that this was a case
in which no periodical allowance was appropriate. The defender was self-supporting prior to the
marriage. Her evidence was that she had
qualified as a medical practitioner but by choice about 6 years before the
marriage had ceased to work in that capacity.
She had chosen to carry out more remunerative work. She now had a choice of work available to her
in Russia. Her English language skills were good and had
improved since the marriage. This
increased her employment opportunities both in Russia
and the UK
where she claimed she was now entitled to work.
She had found employment in the UK
and was well able to do so again. This
very short marriage had not limited her employment opportunities. Senior counsel for the pursuer submitted that
it is the defender's choice or aspiration to retrain as a GP in the UK
but that does not entitle her to continuing support from the pursuer in order
to do so. The mere fact that the pursuer
may have acquired prior to the marriage or after the relevant date substantial
resources does not entitle the defender to ongoing support as was clear from Welsh v Welsh.
Submissions by the defender
[53] The defender submitted that
the relevant date was September 2006.
She referred to Clive, para 21.076-077. She drew attention to the author's views
particularly at 21.077 that "living under the same roof will generally be
important but will not be conclusive.....
Conversely a husband and wife might live for much of the time under
different roofs and yet might still be living together as man and wife.....". The defender submitted that the separation in
2005 was as a result of her going on holiday as she had done before. The intention of the parties was to come
together again. She did not go to Moscow
to separate from the pursuer. It was a
short time thereafter that the pursuer raised what she alleged to be unfounded
difficulties about her visa and her former marriage. The defender submitted that at first she had
considered these real problems but there came a point in the summer of 2006
when her perception was that the pursuer had lied to her. She accepted that the evidence was that she
had exchanged the various emails referred to in evidence but she submitted that
the emails had to be seen in context.
She submitted that the pursuer's mother on her own evidence was plainly
unaware of the details of the relationship between the parties. She submitted that the evidence disclosed
that she had been genuinely wishing a continuation of the marriage. She returned to Scotland
to seek explanations from the pursuer about what she perceived as his
deliberate attempt to keep her in Russia. She submitted that it was only in September 2006
at their first meeting since she left for Russia
in December 2005 that she heard from the pursuer for the first time. "the real picture of our story". On the basis of the evidence the defender
submitted that September 2006 was the relevant date. She submitted that the pursuer had been happy
to accept that date in prior discussions.
[54] In relation to the evidence about finances, the defender
submitted that she did not accept anything the pursuer said about his finances
or anything put before her about his finances.
She submitted that the information he gave could not be trusted. She submitted that she had explained in
evidence that she could not afford full disclosure and an expert to carry out
financial auditing of the pursuer's companies.
She submitted that in the absence of full independent paperwork, the
pursuer should not be believed. She
submitted that her life had been disrupted by leaving Russia
to marry the pursuer and that she had been caused great distress as a result of
problems associated with her marriage to the pursuer.
[55] In relation to aliment, she submitted that she had suffered
economic disadvantage. She had hoped to
be happily married in the UK
and lead a good life. She had
established herself again in Scotland
since October 2006. She submitted
that she had explained in evidence that she had been financially dependent on
the pursuer for the last few years and that even with her salary from
employment, she was unable to support herself.
She submitted that both parties bore responsibility and that she had to
adjust. She submitted that the pursuer
should take some responsibility to enable her to become completely
independent. She could achieve this by
qualifying as a GP in Scotland
albeit that would take some years and she would incur substantial costs.
[56] Finally in her submissions she referred again to the criticisms
which she had made in evidence about the lack of independent valuations and the
lack of full disclosure, as she interpreted it.
She summarised the main points of her evidence. In conclusion she submitted that she was
seeking some financial payment to adjust after the divorce.
Discussion
[57] There
was undisputed evidence that the parties had not co-habited for a period of
more than one year and that the defender had consented to decree of
divorce. It was plain from the evidence
of the parties and Mrs Elizabeth Carrick that this was the case and
that there was no prospect of reconciliation.
I am satisfied that there has been an irretrievable breakdown of the
marriage of the parties and that decree of divorce in terms of the pursuer's
first conclusion should be granted.
[58] In this action the defender seeks payment of a substantial
capital sum. Section 10(1) of the
1985 Act provides that the net value of the matrimonial property shall be
shared equally or in other proportions as are justified by special
circumstances. Section 10(2)
defines the net value of the person's property as the value of the property at
the relevant date after deduction of any debts incurred by one or both of the
parties to the marriage. Not all
property owned by parties is necessarily matrimonial property. Section 10(4) defines "matrimonial
property". I consider that the first
part of my task is to decide what is the relevant date for the purposes of
Section 10(3)(a) of the 1985 Act.
On behalf of the pursuer it is contended that the relevant date is
December 2005. The defender
contends that the relevant date is September 2006. In my opinion the cessation of co-habitation
is a question of fact to be determined from the evidence.
[59] In this case both parties had complaints and criticisms to make
about the behaviour of the other party.
Some of these complaints were touched upon in the evidence. Plainly if the matter had proceeded to proof
in relation to conclusion two, it would have been necessary to asses the truth
or falsity of averments in order to consider whether or not to grant decree of
divorce to the pursuer on the basis of the defender's behaviour. It was my impression that the pursuer
understood that the proof did not extend to these matters because the defender
had consented to decree of divorce and that he did his best to avoid
allegations bearing upon the defender's behaviour. I consider that the defender also understood
this but she showed considerably less restraint than the pursuer in this respect. I wish to make it clear that on the basis of
the evidence led, I am not in a position to asses the truth or falsity of the
averments in relation to the merits which were focused in article 3 and
answer 3. There was evidence before
me of how the parties perceived their relationship from time to time. I am prepared to accept both parties as
credible and reliable in relation to their perception, albeit that does not mean
that I accept either are correct about the facts which may at the time have
influenced and may still influence their perception.
[60] When I consider the evidence about the parties relationship
with the benefit of hindsight, I am in no doubt that the date on which the
parties ceased to co-habit for the purposes of the 1985 Act is
December 2005. I consider that the
submissions made by senior counsel for the pursuer set out in paragraph 45
are well founded. This is a case in
which there has been a complete physical separation of the parties since 3 December 2005. That is not disputed. It is also not disputed that there was no
resumption of marital relations after 3 December 2005. I accept that it was not the parties
intention to cease co-habitation as husband and wife on 3 December 2005 but in my opinion
clearly that was the result of events thereafter. I do not consider that affectionate e-mail
correspondence and an element of financial support post December 2005 in
the circumstances of this case are sufficient to persuade me to a different
conclusion.
[61] I have considered the submission on behalf of the defender
summarized in paragraph 53. I
consider that the passage from Clive relied
on by the defender does not support the defender's submission. The author is not purporting to deal with a
situation where the parties are completely physically separated and have had no
marital relations during the period apart.
In relation to the circumstances post December 2005 raised by the
defender, I have considered these in some detail. I accept that in December 2005, the
defender thought that there might be problems in their relationship but was
reassured by the pursuer. The pursuer
had concerns about the marriage but kept these concerns to himself. It is plain from the evidence from both
parties that the defender's visit to Russia
in 2005 was not intended by either of the parties at the time to be a permanent
separation. It is also plain from the
evidence that, as events turned out, it resulted in a permanent
separation. I accept that the parties
continued to communicate generally on an affectionate basis at least until June 2006. I accept that the pursuer thought the
marriage was over by June 2006 but never disclosed to the defender his
feelings that the marriage was over until September 2006. I accept that the pursuer financially
supported the defender in a substantial way both before and after December 2005. I accept that from the pursuer's perspective,
the marriage was over by at least June 2006 albeit he regarded himself as
responsible financially for the defender until the marriage was officially
dissolved. From the defender's
perspective, I accept her evidence that after December 2005 she wanted the
marriage to continue for a period after the separation. In the summer of 2006 she lost trust and
faith in the pursuer. With hindsight she
blames the pursuer because, from as early as December 2005, he raised
non-existent difficulties and lied to her in order to keep her in Russia. The evidence in this case does not establish
one way or the other whether there were true visa difficulties or true problems
about the status of the defender's previous marriage. In my opinion, these matters which are not
pled in relation to the financial conclusions are in any event unhelpful to the
defender's case. If the defender is
correct and the pursuer, as early as
December 2005, was starting to lie to her and continued to lie or mislead
her in order to keep her in Russia and prevent her return to him in the UK, he
plainly could not be said to display a wish to cohabit post December 2005. The defender accepts that by the summer of
2006 she had lost all trust and faith in the pursuer because of his behaviour
which she considers started shortly after December 2005. If the logic of her position is accepted, it
would be impossible to conclude that the parties had the mental attitude of
co-habiting as husband and wife in September 2006. The logic of the defender's position is that after
3 December 2005,
the pursuer by his attitude, was no longer committed to the parties living
together as husband and wife. The
defender's perception is that shortly after she left Scotland
in December 2005, the pursuer started raising difficulties to prevent her
returning to Scotland. I am of the opinion that if the mental
element of the parties is relevant, neither the evidence of the pursuer nor the
defender supports a position of the parties wishing to maintain the relationship
of husband and wife up to September 2006.
Even taking the most generous view of the defender's evidence, and even
accepting that the mental element of the parties was relevant, I conclude that
the evidence on that basis also points to December 2005 as the relevant
date.
[62] I now consider what is "matrimonial property" for the purposes
of section 10(4) of the 1985 Act. I
consider that this case is somewhat unusual in that the defender, who makes the
claim for a capital sum and aliment, has put forward very little evidence about
the pursuer's assets. She does not even
claim to know what the assets are. Her
starting position is that she does not believe the pursuer because in some
unspecified way he is hiding his assets.
It was entirely unclear to me whether the defender realised that this
proof is concerned to determine the matrimonial assets and not an enquiry into
the whole history and value of the pursuer's assets acquired prior to the date
of the marriage. While I accept that the
defender may not trust the pursuer, I found no evidence to suggest that the
pursuer lied on oath about the extent and value of matrimonial assets. Indeed I am satisfied that the pursuer and
his legal advisors have done a great amount of work to try to demonstrate and
explain the matrimonial assets. Had the
pursuer not provided this information, there would have been very little
evidence at all to support any claim by the defender. I require to proceed on evidence, not
speculation. On the evidence before me, which
I have summarised, I am satisfied that the matrimonial property spoken to in
evidence by the pursuer is set out in 19 of process. That document does not included a reference
to the caravan which was the matrimonial home but inclusion of that asset is
not required. The evidence which I
accept was that the caravan was acquired by a company and was not the personal
property of the pursuer. The defender
gave no contrary evidence and did not cross-examine the pursuer about
this. The total value of matrimonial
property as at December 2005, the relevant date, is £34,076. This is a relatively modest sum but does
represent a valuation covering a very short period from the date of the
marriage 28 January 2005
to 3 December 2005. The defender's evidence which was wholly
lacking in specification was totally inadequate to persuade me that the
information provided by the pursuer in evidence and partly supported by
documentation was untrue. I consider for
example that the absence of an independent valuation report about the value of
the new build property described in paragraph 10 was understandable in
view of the explanation about the minimal value of the property which did not
strike me as exaggerated. In any event
the proof is an adversarial process and in this case the pursuer has done a
great deal to provide evidence. The
defender's case appears to be based on pure speculation.
[63] The 1985 Act, Section 9 directs my attention to the
principles which the Court shall apply in deciding what order for financial
provision, if any, to make. This was a
very short marriage of less than one year.
There are no children. The
pursuer obtained no economic advantage from the defender. Plainly the defender has obtained economic
advantage in the sense that she has been supported since the date of the
marriage mainly by the defender. She has
not in my opinion been disadvantaged in the future labour market. The evidence was to the effect that her English
language skills had improved and that this would be of advantage to her both in
Russia and in
the UK. Bearing in mind that the defender accepted
that it was some six years since she had worked in the medical profession
in Russia
before she met the pursuer, I do not accept that her medical career was in any
way disadvantaged by her marriage to the pursuer. She has, despite the difficulties of
litigation and distress about the marriage, obtained a good job offer in Russia
which she rejected. She has obtained
employment in the UK
which she enjoys. She is skilled and
employable in both countries. I accept
that her earning potential would be greater if she requalified as a GP in Scotland. I accept that would take some years and
involve substantial financial expenses.
In my opinion, however, there is no reason to make the pursuer bear the
expense of the defender's wish to work as a GP and increase her earning
potential. I accept that the defender
has been dependant in part on the financial support of the pursuer. The evidence is plain that she is capable of
earning and supporting herself both in Russia
and in the United Kingdom. I do not consider the fact that her standard
of living might be lower than it has been, because of the absence of financial
support from the pursuer, is a reason for continuing support post decree. The defender is perfectly able to obtain
employment and earn her own living.
[64] I consider that in all the circumstances there are no special
circumstances and no justification for an order for periodical allowance. I accept that the defender is entitled to an
order for the payment of a capital sum from the pursuer. I have had regard to the principles and
provisions of the 1985 Act and conclude that the defender is entitled to
payment from the pursuer of one half of the net value of the matrimonial property
which is the sum of £17,038.
[65] I have not dealt with expenses.
The case will be put out By Order to hear submissions about
expenses.
