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Cite as: [2008] CSOH 125, 2008 GWD 31-473, [2008] ScotCS CSOH_125, 2008 SLT 871

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OUTER HOUSE, COURT OF SESSION

[2008] CSOH 125

F136/07

OPINION OF LORD MATTHEWS

in causa

C M

Pursuer;

against

S T S

Defender:

________________

Pursuer: Hayhow; Stuart & Stuart WS

Defender: Party

2 September 2008

[1] In this action the pursuer seeks an order in terms of section 28(2)(a) of the Family Law (Scotland) Act 2006 for payment of £50,000 and an order in terms of section 28(2)(b) of that Act for payment by the defender of £20,000.

[2] The relevant statutory provisions are set out in the submissions for the pursuer.

Background
[3] It is admitted that the parties cohabited as husband and wife from January 1998 and that there are two children of the relationship, namely MDS, born 15 February 1999 and ANS, born 3 September 2002, hereinafter referred to as M and A respectively. The parties separated on 24 May 2006. The children live with the pursuer and have regular contact with the defender. Further details as to that contact will emerge in due course.

[4] The thrust of the pursuer's case is that she has suffered economic disadvantage in the interests of the defender and the parties' children by giving up full time employment and losing certain opportunities. It is also said that the defender has gained economic advantage by reason of certain benefits he obtained, inter alia, from the fact of cohabitation and the pursuer's looking after the children.

[5] The case called before me for Proof on 13 May 2008 and subsequent days when the pursuer was represented by Mr Hayhow, advocate and the defender appeared on his own behalf.

Evidence
[6] The first witness was the pursuer herself. She said that she was thirty five years of age and lived in Roslin. She was employed part-time as a legal secretary by a firm of solicitors in Edinburgh. Her relationship with the defender began in August 1997 when she was living at that same address. That was her own property, she having bought it in April 1996. The defender at that time was still living with his parents. He spent some time with the pursuer and eventually moved in in January 1998.

[7] She became pregnant and had the two children whom I have already mentioned but the relationship deteriorated after the birth of the second child. She could not live with the defender and asked him to leave in April 2006. He left on 24 May 2006 but the relationship had ended before that.

[8] The children lived with the pursuer and also partly with the defender on two nights a week. They went to his house on Tuesday at tea-time and he took them to school on the Wednesday. He also had them from about midday or thereby on Saturdays until Sunday evenings. His house was in Roslin which was very close.

[9] She began working in February 1989 with VMH when she left school and was employed there when she met the defender. At that time she worked full-time, five days a week. This changed when she fell pregnant with M and she gave up her work in December 1998. She did not return until October 2000. Both she and the defender were happy with this. It was never considered that the defender should give up his work. In October 2000 she went back on a part-time basis to VMH working on Thursdays and for 14 hours in total. This continued until June 2002 when she left to have her second child, who was born in September of that year. She returned to work in May 2004. When off, she had been looking after the house and the children while the defender was at work.

[10] In May 2004 she worked the same 14 hours on Thursdays and Fridays and this continued until June 2006 when she started working on Mondays as well. This was about one month after the defender left. On Thursdays and Fridays she worked from 0830 till 1600 hours and on Mondays she worked from 0900 to 1700 hours.

[11] She had never gone back to full-time work because she had to be there for her children in order to take them to school etc. If she did not have the children there would have been no reason why she would not have continued working with VMH. Her current salary was £12,000 per annum gross. During the periods when she was off her only income was her statutory maternity pay. Her income as a part-time worker was lower than it would have been had she been full-time.

[12] 6/35 of process was a document prepared by the practice manager at VMH showing her actual salary from 1988/89 until 2007/08. She confirmed that the document accurately reflected the sums she was paid during that period, namely £47,333. She also confirmed that the figure for her potential earnings recorded there, amounting to £165,040, was accurate. The difference between these was £117,707. This reflected the difference between what she earned on a part-time basis and what she would have earned if working full-time.

[13] She was a member of the firm's pension scheme to which both employer and employee contributed. She thought that she had joined it in the mid-nineties if not before. She stopped making any contribution when she left her employment to have her first child and had not resumed. She was not able to afford it. She thought that her contribution was 3% of her salary but 6/32 of process, a letter dated 15 January 2008 indicated that both she and her employer paid 5% of the salary.

[14] If she had not given up her work she would have continued to contribute to the pension scheme.

[15] Page 2 of the letter indicated that no contributions had been paid in the last 12 months and the current value of the fund as at 1 January 2008 was £8,463.92. The transfer value was £5,641.69.

[16] 6/24 of process was a letter from an Iain Duckworth, a consulting financial planner with Sutherland Independent Limited, dated 28 March 2008. This firm managed the VMH pension.

[17] This was going to be spoken to by Mr Duckworth but it appeared that if she had carried on contributing from 1998 the notional value of the pension as at 2008 would have been £80,618.

[18] She had three O grades but in 1998 her employer offered to pay for her to go to Telford College to study for a paralegal qualification in residential conveyancing. Unfortunately she was pregnant when this was offered and she was not able to take it up. She could have done so but chose not to, planning to be at home with her child. She had not known how long the course would last. If she had taken it she would have expected that there would be a job with VMH and her salary would have increased. She would have had more options to better herself and an increased earning capacity and would have been more attractive to other employers. She understood that the salary of such paralegals was now in the region of £28-32,000. It would now be difficult to do this course on a part-time basis although there might be some provision for it later on. There was no position as a part-time paralegal with VMH at the moment.

[19] When she first met the defender he was an architectural technician working on a contract basis with a few firms. She believed that he had some qualifications from school and possibly from college. He started a masters degree in project management and building construction at some point in 2005. He had not yet obtained the qualification when they separated. She thought that perhaps he had six months to one year to go. As far as she knew he did eventually complete it. He studied at weekends and during the evenings and she looked after the children while he was doing so. He wanted a permanent position with Midlothian Council but she had no idea if he had obtained it, although she knew that he was now a project manager with the council on a contract basis. His income may have increased when they lived together.

[20] When they started to cohabit he owned a flat in West Park Place, Dalry which was rented out. He continued to rent it out for a time after they cohabited and it was sold in October or November 1998. He kept the rental before that and did not share it with her. He made a profit of around £3,500 on the sale of the flat and he bought a car with part of the proceeds. There was a mortgage over this flat but it ceased obviously when the property was sold.

[21] Her own house was fully furnished with her own furnishings. Her property was more substantial, larger and more comfortable than the Dalry flat. The defender merely brought a leather sofa to the house.

[22] Towards the end of the cohabitation they were entitled to certain tax credits based on their joint incomes. She thought that they claimed those since the birth of M but she could not say exactly when the claims commenced.

[23] An overpayment was made while they lived together. The money was to be used for family purposes and none of it was used by her for her own purposes. She had an obligation to repay the tax credit but she believed it was, or should be, an obligation owed jointly by the defender.

[24] Number 6/26 was a letter from HM Revenue & Customs dated 5 July 2006 indicating that the sum of £5,111.97 was overpaid. It was to be repaid by her at the rate of £10 per month starting on 5 August 2006. This consisted of an overpayment of £3,483.19 for the years to 5 April 2004 and a payment of £1.629.78 for the year to 5 April 2005. The parties were cohabiting during both these years.

[25] She was making the repayments but could not say if the defender was, although she did not believe so. He had not offered to pay any part of it.

[26] The defender contributed to household bills while the parties cohabited. He was the breadwinner when she was not working. When she was working she contributed to food, bills, the childrens clothing etc. and also put some money in the bank, although some of it went to pay for the upkeep of two native ponies. Each of these was obtained while the parties cohabited, the second one being for their daughter. Some of the money also paid for clothes or shoes for herself.

[27] Some of her income was applied to her own support and the defender applied some of his money to his own interests.

[28] When the parties began living together she had a loan with the Skipton Building Society, which was secured over the house. The defender paid certain insurance premiums in relation to an endowment policy in connection with the mortgage. If the mortgage had not been paid the building society would have repossessed the property so he paid the premiums in order to keep a roof over the children's heads.

[29] The mortgage was later increased by £23,000.

[30] 6/2 was a standard security for £26,000 granted on 24 April 1996 and 6/3 was a further standard security for £23,000 granted on 15 December 1998.

[31] These debts were due by her and her alone.

[32] She was therefore left with a bigger debt after the cohabitation ceased than she had had before.

[33] 6/9 contained certain statements in connection with the first mortgage. At page (j) it could be seen that as at 31 December 2006 the sum due was £23,269.86, plus an administration fee of £175, i.e. by my calculation a total of £23, 444.86.

[34] From 6/10, page (i) in relation to the second loan one could see that the sum outstanding as at 31 December 2006 was £20,390.92.

[35] The total figure outstanding, therefore, as at 31 December 2006 was £43,835.78.

[36] She agreed that the defender transferred into joint names an endowment policy which he had taken out with Friends Provident. She also had an endowment policy in her own name which she transferred into joint names. That one was with Standard Life. The transfers took place at the same time.

[37] 6/14 was a letter from Friends Provident dated 25 February 2008 relating to his policy and showing that as at 24 May 2006 it had a surrender value of £8,121.86.

[38] In January 1999 that value was £3,524.06.

[39] 6/15 was another letter from Friends Provident dated 28 March 2008 showing that as at 1 January 1998 the surrender value was £2,852.88.

[40] 6/16 was a letter from Standard Life dated 27 February 2008 relating to her own policy. It showed that the surrender value as at 24 May 2006 was £5,932.48.

[41] She said that although the defender had overnight contact twice a week she was their primary carer. She intended to remain in that position until they had reached sixteen at the least. That was seven years away for M and just under 11 years away for A. (In fact it is nearer 10 years for A). The defender did not share the burden of child care equally with her.

[42] The children went to primary school from 0850 till 1500 hours in the case of A and 1515 in the case of M. The pursuer worked in Edinburgh. She was not therefore able to take them to school and pick them up after school when she was working but her father did that for her. His name was D M. These were services which he provided both before and after the separation. He helped two days a week when she worked after M was born and turned up at her house at around 0730 or 0800 hours, staying till 1730 or 1800 hours. He also helped after A was born when she went back to work. He would take M to the nursery and look after A in the house. He then collected M from nursery and looked after the children till she came home. The defender would have been at work while all this was going on.

[43] Her father now took the children to school and brought A back home again, M being able to make his own way home. He would give them their tea on Thursdays and Fridays. The children would be up when he arrived and were able to dress themselves now. He would give them breakfast and did this each of the three days she worked. He had helped financially and with the provision of clothing and food from time to time. He lived in Humbie, a drive of some thirty to thirty five minutes away.

[44] He had never charged her for his services or claimed any expenses and it was fair to say he was subsidising her. She did not think that this was fair. The defender had the primary obligation to assist her. She did not think that she could rely on her father indefinitely and would be concerned as he got older. He was now 66 years of age. He also helped during the school holidays by looking after the children when she was at work. They stayed at his house one night during the week. She was happy with the care provided by her father but if he was not providing it then she would need to pay for help.

[45] Her job would not allow her to look after the children herself and she would need help both before and after school as well as during the holidays. Secretaries were expected to be there from 9 to 5 and she could not do the job without assistance.

[46] There were breakfast clubs and after-school clubs at the school. She thought that the breakfast club started at around 0700 or 0730 and the after-school club perhaps ceased at 1800 or 1830 hours. She would be able to use them if she could afford it but there were charges. 6/21 was a list of charges showing that for two children for a full week the price would be £36.50 for the breakfast club. The after-school club cost £7.30 each child per day, as I read the document. A half session on a Friday cost £7.60 and a full session was £9.75. She thought that the full session included breakfast but she was not sure.

[47] A full week for the first child was £38 and for the second was £35.85.

[48] There were also holiday clubs. Children would be looked after and perhaps taken off on trips and the like but she did not know when that began. She imagined that it would accommodate working parents.

[49] The holiday club cost £71.45 per week for the first child and £69.30 per week for the second, for full days. The costs for a week of half days were respectively £44 and £42. The daily rate was £14.95 for a full day and £9.25 for a half.

[50] She thought that the children would be on holiday for at least eleven weeks a year but she was not sure. If she were looking after the children during the holidays she could not work.

[51] She did, however, take some time off during the holidays and when she had to work she was supported by her father.

[52] As matters stood she did not think that there was any prospect of increasing her working hours unless the children went to the after-school club. She was not in a position to work from 0930 to 1400 hours five days a week. She did not know if that was available.

[53] She agreed that the children might not need as much care as they grew older and she hoped to be able to increase her hours of work when they became of a legal age to be left alone. She would not be happy leaving them until at least M was sixteen and he was able to look after his sister. It was not fair on her father that he had to keep assisting.

[54] She had made application to the Child Support Agency for assistance and she understood that they had assessed a figure. There was however a variation being investigated at the moment. She had been getting £75.10 per month for the two children. It was being paid but then ceased at some point in 2007. Enforcement action had been taken and arrears of £454 or thereby had been paid.

[55] 6/22 was a letter from the CSA dated 27 February 2008 indicating that as at 27 February 2008 there were arrears of £454.74 and 6/34 was a letter dated 2 April 2008 discussing certain enforcement actions. She said that she believed the payment was made after that letter.

[56] In cross-examination she agreed that she was working Mondays, Thursdays and Fridays. The defender had the children on Tuesday nights so she had Wednesdays free. She also had some free time at the weekends but this did not happen every weekend. It was suggested that this gave her time to do a paralegal course but she said that she could not be employed at weekends as a paralegal.

[57] She agreed that she could perhaps study at weekends but she could not do a full-time paralegal position with her employer.

[58] Nothing had happened about her paralegal course since 1998 because she had been bringing up two children. She repeated that she could not work full-time. She agreed that if parties were agreed and were financially able then it was normal for a mother to take time off work to look after children.

[59] She was asked how she helped him with studies and she said that she did this by looking after the children when he was studying at weekends. He suggested that that was only for six months or thereby from October 2005 until April 2006 and that the children were a lot younger so that their bed time was very early. She said that they went to bed any time between 1930 and 2000 hours. There were times, she said when he needed the room for himself without the children being there.

[61] She agreed with the defender that the £23,000 was taken out in order to convert the one bedroom flat into a three bedroom one by virtue of the purchase of an office below for £18,500.

[62] She was asked if the extra money and some income from him was used to convert the office and she agreed with that.

[64] She reiterated that part of the profit on the sale of his flat was used to purchase a car. It was suggested by him that that was bought because a bigger car was needed for the family since M was now on the scene. She said that she did not know why it was bought. They had two cars before the child was born. The defender suggested that one was a Micra and one was a Golf which was past its serviceable life. She agreed that it was an aged car.

[65] She said that when M was born and she was on maternity leave she had a horse which was kept at a farm. On his birth it went to a field. She agreed that it was then under constant treatment from a vet and had to be stabled continuously but she said that the vet treatment was covered by insurance. She agreed that once certain bills had been met the insured, namely herself, had to pay certain sums but said that there was no subsequent treatment and the horse had had to be put to sleep. She probably met the bills for stabling for the six month period from sums in her bank account and possibly the Family Allowance.

[66] It was put to her that the two additional rooms needed extra furniture and she said that an additional sofa was bought. Additional beds were purchased by her father. It was suggested that there was a chest of drawers to keep clothes in and she said that not everything was funded by themselves. The carpet in the bedroom was funded by her father and his parents funded the stair carpet. There were few items in which they invested jointly. The majority of the house was fully furnished before he moved in.

[68] She agreed that once M was born the defender made the mortgage payments. He put to her that he paid funds directly into her Clydesdale Bank account and she agreed that he did so for living expenses to cover insurance, house insurance and "endowment".

[69] She agreed that he had asked to have the children for two weeks instead of one week this summer but nothing had as yet been arranged.

[70] In re-examination she said that she believed that he bought the car to replace the one which he had at that time. He had a VW Golf and he bought a BMW which was older than the Golf.

[71] She had owned the horse before cohabiting with Mr S and it was put down. It had been insured for vet bills and the bulk of those were covered by the insurance although there was a shortfall. She made up the shortfall from resources in her own bank account.

[72] The horse was put to sleep in March 2003. At that time she was off work with A and was in receipt of maternity pay. She did not know if weekends and Wednesdays furnished sufficient time to study for a course and even if she did study she did not know if there would be a job. There were currently no part-time positions as a paralegal in the firm. However, her employer would not fund her attendance at a course if there was no job available for her and if she went to another firm they would seek reimbursement.

[73] The second witness was the pursuer's father D M. He was frequently in the house when the parties were together and started assisting with childcare when M was about 18 months old in October 2000. He offered to look after him while his daughter was at her work. That continued until she was carrying A and gave up work in late Spring of 2002. A was born in the September of that year and he resumed his child care when A was about 18 months old in May 2004. Since then he had been looking after them both. Since June 2006 that had been three days a week, Mondays, Thursdays and Fridays. He left his home in Humbie about 0700 hours and arrived at about 0735. He would leave in the evening when his daughter came home from work and would get back to his own house about 1830 hours. He would generally socialise with the children and would help them to get up and dressed if they were not already dressed. They were probably able to do that themselves now. He would go downstairs with them and sometimes have breakfast together. He would check that everything was alright for the school, his daughter usually seeing to a packed lunch or giving them dinner money. He would double check it however. He would then walk A to school. M was able to go on his own but sometimes he came with them. They arrived at the school around 0845 and that was the end of his morning shift. Before either was attending school he had them all day. A started school in August 2007 having been at nursery school beforehand. She only went to the nursery in the morning and he would look after her in the afternoon. The nursery was in the same building as the primary school. He was able to take her at the same time as M. After he had dropped the children off in the morning he would go to the gym until about lunchtime and then he would do some shopping for his daughter and the children. That provided financial assistance as well as the practical assistance of doing the shopping. His wife worked full time so he did the shopping for her as well.

[74] He would pick up A at 1500 hours and M would come home on his own at 1515. He had been doing this since he started Primary 5 in August 2007. Then they would have snacks and after that he would check their homework or they would relax. He enjoyed doing the homework.

[75] He was now retired but he had been involved in teacher training since retiring, usually on a Tuesday afternoon. He taught primary teachers how to teach French but he did not know if there would be funding in place for this in the future. He had previously been in charge of a Modern Languages Department in a secondary school. If funding became available for the teacher training then there would be no clash with his childcare commitments if he was required on a Tuesday. If there was a clash he would hope to negotiate something with the organisers or perhaps his daughter could organise something with her employers.

[76] After homework what they did depended on the time of year. In the summer they could go to the park or go cycling or walking. During the winter they would stay inside. His daughter normally came home around 1730 to 1745 except on a Monday when she would be home by about 1645.

[77] During the holidays things carried on as usual. His daughter did not have school holidays herself so he was required as much as he was throughout the school year. He would take the children places and do things that they enjoyed although they liked playing with their friends as much as anything. He had the same timetable as far as arriving and departing was concerned. He never sought payment or expenses. The journey from his home and back only used about a gallon of petrol and he was really pleased to be able to help out. He regarded himself as privileged to be part of the children's upbringing and was happy to provide financial assistance. There was no way his daughter could pay for childcare. If he did not assist with her he did not believe that she would have the financial ability to pay for it.

[78] He was 66 years old and until last year he would have said that he felt fine. However about a year previously he had felt some stiffness in his shoulders and joints and over the course of time that got progressively worse. He saw his general practitioner in October and it was thought that his condition was due to a reaction to a drug which he was taking to reduce his cholesterol. He stopped taking the drug but he was still in pain doing activities such as driving so he had been undergoing some blood tests, the results of which were expected in a week. It was suspected that he might have rheumatoid arthritis. He did not know if his condition would disappear or get worse or just stay the same and could not really say what his position would be next year. He was however absolutely willing to continue to assist.

[79] In cross-examination he said, as I understood it, that he would be happy to have the defender take the children on a Wednesday evening rather than a Thursday which would save him a trip. If the defender had the children on a Thursday, that would relieve him from a morning shift on the Friday.

[80] He agreed that while the defender was still cohabiting with his daughter he would visit the house to see her.

[81] The next witness was Miss Caroline McCleery. She was the practice manager with VMH LLP. She took up office there in January 1999 and was based at an office at 34a Raeburn Place, Edinburgh. The company had four offices. There were six partners and around forty members of staff. Her responsibilities included practice management, Human Relations, recruitment, IT, pensions, insurances and premises.

[82] She had access to personnel records. She confirmed that the pursuer was an employee there and had been employed since February 1989 in various offices. She was now a legal secretary at South Clerk Street.

[83] 6/20 was a letter written by the witness dated 21 February 2008. The information on which she based the letter was taken from the pursuer's personnel file. The pursuer had taken two breaks from December 1998 till November 2000 and from June 2002 till May 2004 when her children were born. As with all legal secretaries with her experience, the opportunity was available to the pursuer to study for a paralegal qualification, funded by the firm, to develop her career. This was an opportunity the pursuer felt she had to turn down in 1998 due to her pregnancy and the family commitments this would bring. That information was obtained from Phillip Valente, a partner in the firm.

[84] She said that if a qualification was relevant to a job then the firm would support the person financially and practically, in other words they would pay for the qualification and give time off for exams or studying. The paralegal qualification would have related to residential conveyancing, in which field the pursuer worked as a legal secretary.

[85] Currently there was a paralegal employed by the firm in that area. She was slightly older than the pursuer and had come to the firm with the qualifications.

[86] There was a salary differential between full-time legal secretaries and full-time paralegals. The rate for a paralegal was between £28-32,000 depending on the person's experience and the rate for a full-time legal secretary would be between £17,000 and £21,000 or £22,000.

[87] Had circumstances been different and the pursuer had completed her paralegal qualification she could be earning in the region of £28-32,000 according to the letter. That would have however been as a full-time residential conveyancing paralegal. The firm would not employ paralegals in conveyancing on a part-time basis because clients needed to speak to the person dealing with their case at any time. Such employment had not been offered in the past and there were no plans to do so now.

[88] If the pursuer had completed the qualification in 1998/99 she would have had the chance to take up a job with the firm in that capacity. One of her contemporaries had taken the qualification in 1998 and had taken up employment from January 2000. She thought that the training could take up to 18 months to complete.

[89] 6/35 was certain salary information which the witness compiled. It showed the pursuer's actual salary (gross) from the tax year 1998/9 to the tax year 2007/08. It also showed what she could have earned as a full-time legal secretary had she carried on working on a full-time basis for those years.

[90] The total difference between what she actually earned in those years and the potential earnings was £117,707, as I have indicated.

[91] The figures were taken from the pursuer's P60 and an explanation for the figures in 1998/1999 and 1999/2000 was set out at the bottom of the page showing that maternity pay, holiday pay and statutory maternity pay were included in the calculations.

[92] That was why certain figures were shown as having been earned although she was not at work in particular tax years.

[93] The potential earnings were what she could have made as a legal secretary. They would have been substantially higher if she had been working as a paralegal.

[94] She thought that in January 2000 a paralegal would have been earning around £18,000 and a secretary would have been earning around £15,000, so the difference in that year was around 20%. The difference was greater now.

[95] In cross-examination she agreed that the pursuer started work in 1989. She could not say why the offer to qualify as a paralegal was not made until nine years later when she was pregnant. The witness was not in the firm at that time.

[96] There had been no specific offer made since then but if the pursuer had wanted to take the qualification she would have had the opportunity to do it. Nonetheless she could not be employed as a paralegal on a part-time basis.

[97] She did not know the personal circumstances of the contemporary who had taken up the offer. She no longer worked with the firm.

[98] She agreed that there were a lot of legal secretaries in the firm and that it was quite common for them to take breaks in order to have children. She had never given evidence about loss of earnings before.

[99] The next witness was Phillip Joseph John Valente, a partner with Valente McCombie Hunter or VMH. He had been a solicitor for 26 years and a partner for 21 years. In fact he was a founding partner. His activities were principally in the residential conveyancing department. He was managing partner and had been for 20 years. The pursuer worked for the firm, having started in 1989 when she left school, and she was now a legal secretary.

[100] She had started out as an office junior but had been a legal secretary for a considerable time. She worked for Mr Valente's team and he would have some involvement with her on a daily basis.

[101] Since 1986 the policy of the firm was to offer staff the opportunity to take further relevant qualifications. In particular, secretaries could attempt to qualify to become paralegals. The pursuer was offered the chance in 1998. He was asked why it took till then to make the offer and he said it was a question of experience. She had been a junior for a number of years and then a junior typist and had worked up and achieved a level of responsibility and ability that merited the chance. The course would have taken around 9 months or so over two terms. She did not take it up because, he believed, she was pregnant. His memory of the matter was slightly vague. If she had taken it up in 1998 there would not necessarily have been a job available for her immediately but that would have been the aim. The full-time paralegals worked on their own case load. The firm had not employed part-time paralegals and there was no plan to do so. The paralegals handled their own case loads and reported to a partner. It was important that clients be able to get hold of them on a day to day basis. There was a significant salary differential between legal secretaries and paralegals. One paralegal in the firm was earning well in excess of £30,000. There was a significant differential between the salaries for the two posts at the time when the pursuer could have qualified as a paralegal. The firm was still prepared to offer paralegal training to the pursuer but if she took it up she would not be able to work on a part time basis. That policy was not expected to change. They paid their legal secretaries the professional norm which was around £20-22,000. A paralegal would be paid at least £30,000. The holder of a paralegal qualification would be more attractive in the legal market and would generally find it easier to secure new employment.

[102] In cross-examination he was asked whether it was up to an individual to make it known that they were interested in obtaining a qualification. He said that it was made known in the terms of engagement that the firm encouraged people to take on additional education or training but sometimes secretaries approached them about it.

[103] It had been open to the pursuer to approach the firm before they approached her. They did so because they thought she was ready. He did not recall her approaching the firm before that. He was asked why the offer came when she was considering a family and he said that she was not taking maternity leave at that stage. The offer must have been in the early stages of her pregnancy. She had shown considerable promise and was excellent with clients. It was possibly for staff retention reasons as much as anything else that they offered her the opportunity. If she had approached them two or three years earlier for example they would have discussed the matter.

[104] Since 1998 she had mentioned that she would be happy to do it in future but her family circumstances were such that she could not comfortably do it. He could not speak to what she did in her free time but perhaps it was sufficient to allow her to study for the qualification.

[105] In re-examination he said that he thought that the pursuer was ready to embark on a qualification before 1998. Apart from her family he could not think of any other reason why the opportunity was not taken up in that year.

[106] The last witness for the pursuer was Iain Alexander Duckworth. He was an independent financial advisor who worked with Sutherland Independent. He held a BA in Accounting and Finance and had an Advanced Financial Certificate as well as an S60 authorising him to advise on pensions. He had trained as a chartered accountant.

[107] VMH had been a client of his for 15 years and he advised their staff on pensions. There was a personal pension scheme to which both the employee and the employer contributed. These were run by both Scottish Equitable and Scottish Widows. The pursuer was a staff member and a member of the Scottish Equitable scheme.

[108] The contributions were based on a proportion of the employee's salary. VMH would only contribute if the employee also contributed. The contributions did not necessarily have to be equal but they were in the pursuer's case. He did not know when she started but her plan was active before 1998. She had last contributed before taking maternity leave in 1998. Both she and her employer contributed 5% so the contributions were 10% of her gross salary.

[109] He was asked to carry out a projection as to what the pension would have been worth had she carried on contributing as a full-time salaried employee from 1998 to date.

[110] 6/24 was a letter of 28 March 2008 which he had written to the pursuer's solicitor setting out its terms of reference. He had spoken to Caroline McCleery in order to ascertain the level of the pursuer's notional salary. Following that conversation it was agreed that a figure of 3% per annum was reasonable as an assumed salary increase. Miss McCleery assured him of this.

[111] He also assumed a rate of growth of 5% per annum. He explained that an argument could be made for a higher growth and that his projected figure was a conservative one. He went into his methodology but that was not challenged in cross-examination and I need not take up time with it.

[112] The assumption for inflation reflected the increase in salary.

[113] The table attached to the letter showed his calculations. By way of explanation one can look at the first set of figures. In 1998 the salary was £14,040 and assuming a contribution of 5% by employee and employer or £702 each the total contributions would amount to £1,404. Assuming 5% growth per annum compounded then those contributions would be worth £15, 897 at December 2007. The figure for fund growth decreased with each passing year because there were fewer years of investment.

[114] The total projected value in the fund would have been £80,618 by the end of 2007.

[115] That took no account of the value of the fund from the contributions made previously. 6/32 was a letter dated 15 January 2008 from Aegon Scottish Equitable, page 2 of which showed the value of the fund as being £8,463.92 as at 1 January 2008. If she had carried on contributing to the fund at the notional rate then the value of the fund as at December 2007 would have been the aggregate of that figure and the £80,618 to which I have already referred.

[116] In cross-examination he said the super-annuation was generally a final salary scheme but it related to payments made by employees. It was put to him that if there was a career break then an employee could not contribute anything and he said that the legislation had changed. It used to be that one had to have earned income to contribute but that changed in 2006. Before that, however, the matter had to be looked at in the context of a tax year. If a legal secretary for example stopped work in December 1998 then she would be able to make contributions for the tax year 1998/99 and the tax legislation would also have allowed her to contribute the following year as well even if she had no earned income.

[117] It was suggested that the figures were incorrect because she had only been employed for either two or three days per week when she went back to work. He explained that all he had been asked to do was to make an assumption that she maintained full employment.

[118] He agreed that a lot of legal secretaries took a career break and they would either make no contribution or reduced contributions.

[119] If someone had an existing pension he would quite possibly advise them to keep it going.

[120] It was suggested that 2007 was after the date of the separation and he confirmed the terms of his remit. There was nothing to stop adjustments being made to his figures, which were purely arithmetical.

[121] With that the pursuer's Proof was closed.

[122] The defender then gave evidence on his own behalf. Before he started Mr Hayhow indicated that he was concerned that the defender might stray into matters which were not the subject of pleadings and were not put to the pursuer. In view of the fact that the defender's evidence in chief was effectively to be by way of narrative I allowed it to be received generally under reservation.

[123] Mr S confirmed that he was 41 years of age and lived in Roslin. He confirmed the details of the parties' cohabitation between January 1998 and 24 May 2006 and confirmed the details of the children.

[124] He said that the pursuer was claiming that she had suffered economic disadvantage in connection with her employment and pension. He said that her own witnesses had demonstrated that that was not the case. She could have applied for the paralegal qualification in 1996. That had been confirmed by Mr Valente who had said that the study period would have been in the region of twelve months.

[125] Mr Valente had also confirmed that after completion of the qualification no job was necessarily available.

[126] Both Caroline McCleery and Mr Valente had confirmed that the chance to take up paralegal studies still existed today. In the nine years after becoming a mother the pursuer did not demonstrate any interest in engaging in the employment opportunities which were available. The amount of free time which the pursuer now had was greater than was enjoyed by most legal secretaries who were engaged in full-time work. Caroline McCleery confirmed that a former colleague of the pursuer's was also a young mother and was working as a paralegal albeit in a different firm of solicitors.

[127] (That was not my understanding of what Ms McCleery said)

[128] As far as earnings were concerned he said that many legal secretaries take maternity leave and a career break. The pursuer did that and was now working three days a week. Her earnings had increased with inflation albeit on a pro rata basis.

[129] In relation to the pension Mr Duckworth had confirmed that contributions could only be made by employees. The law had changed in 2006 but for the period in question it was not possible for people not in employment to contribute to a pension fund. Therefore the pattern of contributions with breaks in it would be exactly the same for any parent taking career breaks to care for children.

[130] It had been said that the pursuer was unable to work more hours. Since he took the children on a Tuesday evening and then to school on the Wednesday morning that gave her a free day on the Wednesday albeit she might have to leave work early. Since he had a house at 26 Main Street which was very close to the childrens house and the school as well as his own place of work he could take them to school every morning. They did not have to stay overnight with him and it had been done in the past. In the past if he had to be through in Glasgow and he had had the children on a Tuesday night the pursuer had taken the morning shift, as it were, so matters were flexible. He had also mentioned in cross-examination of Mr M that it was possible for him to change from a Tuesday to a Wednesday evening thereby freeing up Mr M's Thursday morning shift.

[131] Turning to another matter, it had been suggested that because he was cohabiting with the pursuer he was able to further his own career by studying and taking a masters degree in order to become a project manager with a substantial income. That was not the case. He did not complete the masters degree during the cohabitation and in fact had not yet completed it. He started it in October 2005 and left 18 Main Street in May 2006 some seven months later. At that time he had just completed the examinations at the end of the first term. He explained that the course was broken down over two years on a day release basis so there was still a further year of examinations and assigned work. After successful completion of the two years one could then proceed to submit a dissertation. His dissertation was still outstanding so he was not yet in receipt of the degree. His first examinations were at the end of April or beginning of May 2006. The course runs from October until May. It started again in October 2006 and finished in May 2007. He intended to submit his dissertation in September this year.

[132] He said that his income was exactly the same now as it had been when he left 18 Main Street. Because he had passed the exams, though, he had been offered a job in January 2008 with Midlothian Council on a full-time basis as opposed to a contracted basis. He had not yet been able to formalise that as there were a number of documents which he needed to provide the personnel department with. He had left 18 Main Street without these documents. His solicitor had written to the pursuer asking for them. He had asked her for copies of previous qualifications which he had mentioned in his application. He was now in receipt of them so he anticipated that the post would soon be finalised and he would go onto the payroll very soon.

[133] It was therefore only a matter of six or seven months when he was studying in the house. He was working full-time at that time albeit taking one day off a week from October until April and then the requisite days off for his examinations. He did as much as possible to increase his hours and keep up to the standard council 35 hour week on Mondays to Thursdays in order to provide for his family and meet the demands of a family home. On a Friday he would attend university during the first year, the university day being a Monday during his second year.

[134] Therefore there was only a short period when he was studying while the parties cohabited. It was claimed that she supported him throughout this and allowed him to carry on his studies. She had said in evidence that at that time the children were three years younger and bedtimes were early being about 7.30 to 8.00 in the evening. That allowed him to study while the children were in bed and let her have the evenings free.

[135] He admitted that from time to time he went to Heriot Watt University and she cared for the children. That was generally done at weekends and he tried to limit it to four hours at a time. He always made it a priority to participate in the lives of the children every weekend. He was not in receipt of a significant income as was stated in the papers.

[136] It had been claimed that when he moved into number 18 he lived rent free and that allowed him to rent out his own flat at West Park Place, Dalry. That was not true. He never lived rent free, always making contributions. Not too long after he moved in, an additional loan of £23,500 was taken out in order to purchase the office below. The flat in West Park Place was rented out but not because he had moved in with the pursuer. It had been rented out since 1995 when he was working overseas with the Property Services Agency and on his return the lease had not expired.

[137] The pursuer became pregnant around May 1998. They were living in a one bedroom flat at number 18 Main Street and they needed larger accommodation with a child coming along. They considered larger houses in the Roslin area but the flat below was up for sale so they decided to buy it. That was why the loan of £23,000 was taken out. The whole property was converted into a three bedroom dwellinghouse. At that time he sold his flat in West Park Place so that he could concentrate on the new mortgage commitment and focus on getting the office renovated so as to turn the two properties into one house. He continued to make the mortgage payments for the next eight years until the separation. He thought that it was around £370 per month. Initially it was an endowment mortgage and the payments were lower before it changed to a repayment mortgage.

[138] The office premises cost £18,500. There was not much of a market for commercial property in Main Street, Roslin, there being hardly any business trade in the street. He applied for a change of use from commercial to residential and that was granted. Planning applications were submitted to strip out the office façade, windows, toilet etc and change it into a more residential dwelling. He made the building warrant submission for all the works. There was a good deal of work involved at that time. It was said that his contributions were alimentary but that made light of his time, his effort and his involvement. "Alimentary" suggested some kind of day to day nourishment but his investment was long term. For example, he provided a wood burning stove which would last longer than the lifetimes of the parties. He and the pursuer obtained a lot of salvage items from salvage yards and they had been installed. Work was done throughout the property to bring it up to standard. As he indicated the toilet was demolished and wall finishings were stripped out. He did not regard any of that as alimentary in nature.

[139] He was not just living there as some sort of lodger paying rent. He was the breadwinner and did as much as possible to provide for his family. They went on holidays abroad every year. Every room was redecorated except the kitchen. The bathroom was fitted with marble tiles which were bought and installed by him. A laminate floor was put down.

[140] He was and continued to be the children's father and he tried to provide the best accommodation for them.

[141] He had left 18 Main Street with no assets at all so to claim that the pursuer had been financially disadvantaged was totally untrue. On the other hand he had been. He had been in the property market since he bought his first flat in West Park Place in 1993, having paid a mortgage all that time till 2006 when he left number 18. Having no assets he had to start at the bottom of the property ladder and took out a 100% mortgage. He bought a place close to his children so he could play an active role in their life and he continued to do so to that day.

[142] As far as the tax credits were concerned he accepted that overpayments were received. The tax credit officer was made aware of them and efforts were made to retrieve the funds. They told the pursuer, who was dealing with the matter, that their policy was not to take back credits and they advised her that in many cases family circumstances might change and things might balance out over a period of time. He was not ever asked to help with repayments of the tax credits since leaving the house.

[143] He shared the economic burden of looking after the children. He had had to provide a new house giving them continuity in their life. They could come and visit him without any disruption and could play with the same friends and go to the same places. He had them on a Tuesday night and took them to school on the Wednesday morning. He also had them from lunchtime on Saturdays until about 1900 hours on Sundays and the weekends were a time when greater demands were made in terms of finance than school days. He also bought them clothes, not just for school, and took them on excursions as well as other things like the swings and the pitch and putt. They were completely involved with him and he with them. The level of contact he had with them was not his decision. That had been decided by their mother. He would be happy to have them more often. He was involved in education in the community and had seen a lot of breakfast clubs. In his opinion children would be better off having breakfast at home. His place of work was close to the school and he could take the children there.

[144] He did seem genuinely to care for his children.

[145] As far as the CSA payments were concerned he admitted falling behind and not being as up to date as he could be. He told the CSA earlier this year that his employment conditions were to change imminently. They had been looking for information about the changes and he could not give them it until he was on the payroll.

[146] In cross-examination he agreed that he ceased to make payments to the CSA in September 2007. He was in full-time employment at that stage without any offer of employment in January. He continued in arrears between September 2007 until about the beginning of May 2008.

[147] It was put to him that the arrears were for the period up to September 2007 but he could not confirm that. He had not been asked for any further payments. He agreed however that he had been in arrears.

[148] It was suggested that as a result of this the pursuer had had to bear the burden of caring for the children and he said that it was not the whole burden. She did have the burden when the children were with her but he was taking the children and bought things for them such as clothing etc.

[149] He agreed that he was assessed as having a liability to pay £75 per month for the children. As far as the 100% mortgage was concerned he said that he had no funds to put into the house so that was why 100% was borrowed. 90% was borrowed from a mortgage company and he obtained a loan of £20,000 as a deposit from his sister. The property was bought in 2006 for £165,000. He was not able to say what multiplier was applied to his salary. He went to a mortgage broker, who told him that there were companies which dealt with people employed on a contract basis, as he was. He was told by the broker that three times one's salary was available but a lot of companies based their lending not on a multiple but on credit rating and some were willing to take greater risks than others. The loan of £145,000 which he received from the building society was far in excess of three times what he earned. He did not earn £48,000 a year.

[150] He accepted that as a couple they were in receipt of over payments of tax credits. He accepted that he had an obligation to repay it and that the overpayment was applied to family purposes including looking after the children and himself.

[151] It was suggested that none of the evidence which he had given about the improvement to the flat was put to the pursuer and he accepted that he did not mention the tiles or the decoration.

[152] He agreed that a builder, one Alvin Robertson, who was the step father of a friend of the pursuer's, carried out the alterations. He agreed that the pursuer took out a loan of £23,000 whereas the purchase price of the property was only £18,500. It was put to him that the balance of the loan was to be used to pay for the renovation and he said that some of the renovation was met by that but other items required to be paid for.

[153] The loan was in the pursuer's name. The parties had discussed taking title to the property in joint names but that never came about.

[154] He made contributions for household bills and the mortgage as well as for decoration etc. He was not living anywhere else at the time. He agreed that he had an obligation to keep a roof over his children's head as well as his own and that the mortgage payments were necessary to achieve that. He was asked why he did not regard them as alimentary. He said that he regarded a mortgage as a long term investment whereas rent would be alimentary. He agreed that if the mortgage payments were not made the building society could have repossessed the property and that he paid the sums to ensure that this did not happen. He said that they had chosen to have children and they needed a larger house. That was why the loan of £23,000 was taken out. He pointed out that the value of the property at 18 Main Street had gone up considerably and in this connection he referred to 6/18, a letter from a Mr Young, a financial consultant, setting out a mortgage illustration which, he said, gave a value of £200,000 for the property as at 6 March 2008. He said that that was far in excess of the cost of the property. He said that they could have kept the one bedroomed flat. It was put to him that the mortgage obligation was taken on by the pursuer alone and that he made the repayments in order to keep a roof over their heads. He said that he also sold his flat in West Park Place. He had had a mortgage since 1993. It was suggested that he sold the flat and used the money to buy a new car. He said that the Golf was not safe, not being roadworthy and was effectively given away for £100. The Nissan which the pursuer owned was not safe for a child either.

[155] He disagreed with a suggestion that he simply fancied a new car and bought it with a spare couple of thousand pounds which he had.

[156] As far as his qualifications were concerned he agreed that he had done around two years of the course and that the dissertation was outstanding. It was put to him that he was in a position to receive a diploma and he said that in order to be entitled to that one had to do a report. That was roughly half the length of the dissertation so he was just as well waiting to do that. It was suggested to him that the purpose of getting the extra qualification was to make him more marketable in the employment system and he agreed with that but said that he wanted to provide for his family. He would be able to have paid summer holidays and take the children with him.

[157] As it stood he did not have the benefit of a full-time job as yet but he hoped that matters would be finalised very soon. He would receive pension entitlements, paid holidays, fitness benefits and flexi-time. When one was on a contract there was always a risk. That was alright for a single person but not when there were children involved. There could be problems for example if he became ill. He did want to increase his marketability but the reason was so that he could provide for his family and himself as part of that family.

[158] He had not made the CSA payments because he had had cash flow problems. If his mortgage payments had not been met on time then that would have put him into arrears and caused problems with his lender. He was currently out of his depth.

[159] He did not think that the children should suffer but it was put to him that that was in fact what happened. He said that when one had financial problems one had to prioritise. It was important for him to keep 26 Main Street so that the children had a house where they could come to stay with him.

[160] He accepted that he attended the library at weekends for up to four hours at times when he was studying. He also studied in the evenings but said that the children were in bed at that time. He did not study every weekend but when examinations were coming up. It fluctuated throughout the year.

[161] In any event, these study periods at the weekends were the four hours he had already mentioned. He tried as hard as possible to work up to 35 hours from Monday to Thursday. It was put to him that through all this the pursuer was looking after the children and keeping house. He said that it was a case of managing time, leaving for work earlier and starting earlier. That all took place over five to six months. The course did not run from 12 December until the middle of January. In the period when he was studying he made a lot of sacrifices himself in terms of time management in relation to other activities and socialising.

[162] It was put to him again that the pursuer had to take up the strain of looking after the children and the house and he said that Mr Hayhow was missing the point. If he started work early in the morning that was him managing his time. In the evening the children were in bed by 7.30 or 8 and he was studying then. In that case he would have been in the house and the pursuer had free time which enabled her to go out.

[163] He said that during the week from Monday to Friday there was no requirement for her to look after the children and the house on his behalf, although there was at weekends when he was studying in the library. He reiterated that when he was studying in the evenings he was in the house and the children were in bed.

[164] He accepted that the pursuer's father had assisted to a large extent with the care of the children and had not sought payment. He was asked if he accepted whether the pursuer would be able to work the hours she did without that assistance and he said that he was able himself to take the children to school thus freeing up time for her.

[165] He was asked if he accepted that child care might cost money if Mr M could not assist. He said that he would like to have a say in that. He was asked if there was any reason why Mr M should be bearing the expense of the child care and said that he had done it willingly and regarded it as a privilege. He was not saying that Mr M should do it. If he decided not to, then all options would have to be considered, including putting his own hand in his pocket and paying for it. He reiterated that he could take the children to school and pointed out that he had parents as well. He had the children on Tuesdays, Saturdays and Sundays and that was all the time he was allowed. He would take them for longer if he could and he said that they had demonstrated that they could be flexible.

[166] It was put to him that the flexibility was all one way such as when he wanted to go to Glasgow on a Wednesday. That was merely an example which he had given, he said, and the flexibility worked both ways.

[167] Following cross-examination he said that he wanted to make the point that it was the pursuer who applied for the extra mortgage and it was him that met all the repayments. It was the pursuer that was left now with a property worth £200,000 which was worth around £80,000 before. She had therefore had all the financial benefit. He had made the investment and received nothing for it.

Submissions for the Pursuer
[168] Mr Hayhow invited me to sustain the first and second pleas-in-law for the pursuer and grant decree for £50,000 in terms of the first conclusion, under section 28(2)(a) of the Family Law (Scotland) Act 2006 and for £20,000 in terms of the second conclusion, under section 28(2)(b) of the Act.

[169] He said that the Act came into force on 4 May 2006 and created an entirely new regime for cohabiting persons to make claims for financial provision on cessation.

[170] He understood that there was one case at avizandum where the Lord Ordinary had to decide on the date of cessation but he was not aware of any other authorities on the matter. He did not think that foreign authorities would be of any assistance but there might be some apparent analogies in the Family Law (Scotland) Act 1985.

[171] He drew my attention first of all to section 25 of the 2006 Act which defined cohabitant. It was not in dispute in the current case that the parties were cohabitants and I need not rehearse that section.

[172] Two types of orders could be made under section 28 where cohabitants ceased to cohabit, as had occurred on 24 May 2006. The first order was under section 28(2) (a) and the second was under section 28(2)(b). Those, and Sections 28(2)(c) and (3), are in the following terms:

"28(2) On the application of a cohabitant ("the applicant"), the appropriate court may, after having regard to the matters mentioned in subsection (3) -

(a) make an order requiring the other cohabitant ("the defender") to pay a capital sum of an amount specified in the order to the applicant;

(b) make an order requiring the defender to pay such amount as may be specified in the order in respect of any economic burden of caring, after the end of the cohabitation, for a child of whom the cohabitants are the parents.

(3) Those matters are-

(a) whether (and, if so, to what extent) the defender has derived advantage
from contributions made by the applicant;

and

(b) whether (and, if so, to what extent) the applicant has suffered economic disadvantage in the interests of-

(i) the defender; or

(ii) any relevant child. .

[173] Section 28(9) defines a child as a person under sixteen years of age and provides that "contributions" includes indirect and non-financial contributions (and, in particular, any such contribution made by looking after any relevant child or any house in which the parties cohabited); that "economic advantage" includes gains in (a) capital, (b) income and (c) earning capacity; and that "economic disadvantage" shall be construed accordingly.

[174] Section 28(10) provides for the circumstances in which a child is "relevant" but that is not an issue in this case.

[175] Section 28(4) provides as follows:

"In considering whether to make an order under subsection (2)(a), the appropriate court shall have regard to the matters mentioned in subsections (5) and (6)."

These subsections are in the following terms:

"(5) The first matter is the extent to which any economic advantage derived by the defender from contributions made by the applicant is offset by any economic disadvantage suffered by the defender in the interests of -

(a) the applicant; or

(b) (any relevant child.)

(6) The second matter is the extent to which any economic disadvantage suffered by the applicant in the interests of -

(a) the defender; or

(b) any relevant child, is offset by any economic advantage the applicant
has derived from contributions made by the defender."

[176] Counsel submitted that these provided for a balancing exercise and it was only when the court was satisfied that there was an imbalance in favour of the pursuer that an award could be made under section 28(2)(a).

[177] It was noteworthy, however, that section 28(4) did not apply to an order under subsection 28(2)(b), so in considering whether to make an order under subsection 28(2)(b) one had to have regard to subsection (3) but not subsections (5) and (6).

[178] The Child Support Agency dealt with questions of aliment as far as the needs of a child were concerned. 28(2)(b) was directed towards the cost to the party looking after the children as opposed the costs of the children as it were.

[179] For example if a child cost £20 a week to maintain and a person looking after the child had given up employment worth £100 a week then the latter was the figure to which regard had to be paid. That may or may not be right depending on the circumstances but I will say more about it later. As it happens, it was not the approach adopted in this case.

[180] In dealing with an order under section 28(2)(b) the court simply had to look to see if an economic burden had been identified. No balancing exercise was to take place.

[181] Mr Hayhow pointed out that in divorce actions the court had to proceed by reference to the resources of the parties but there was no such qualification in the 2006 Act. This might be thought to be an obvious flaw in the legislation but the 2006 Act did not provide a whole scheme of division, unlike the 1985 Act.

[182] In the absence of reference to resources the legislation on the face of it did not restrict the order by reference to ability to pay.

[183] In this case there had been little evidence about resources. There had been evidence from the defender that his salary was less than £48,000 but he had not raised the question of resources. The pursuer had not sought to obtain information by way of Specification of Documents for example but she was not obliged to raise that question. Whatever the pursuer's obligations, I have some difficulty with that submission and I will revert to the point in due course.

[184] There was then some discussion as to whether an order could be by way of periodical payments. That was not a matter which had to be decided at this stage in view of the orders which were sought so I make no comment on it, other than to say that at first blush the Act appears to provide for the payment of fixed amounts, albeit payment by instalments is possible under Section 28(7)(b).

[185] My attention was then drawn to the 1985 Act and in particular to parts of sections 9(1), 9(2) and 11 thereof. Mr Hayhow submitted that 28(2)(a) and (b) had certain similarities to these provisions.

[186] The provisions of the 1985 Act to which Counsel referred are as follows:

"9.-(1) The principles which the court shall apply in deciding what order for financial provision, if any, to make are that-

(a) the net value of the matrimonial property should be shared fairly between the parties to the marriage or as the case may be the net value of the partnership property should be so shared between the partners in the civil partnership;

(b) fair account should be taken of any economic advantage derived by either person from contributions made by the other, and of any economic disadvantage suffered by either person in the interests of the other person or of the family;

(i) after divorce, for a child of the marriage under the age of 16 years should be shared fairly between the persons...

(2) In sub-section (1) (b) and section 11 (2) of this Act -

'economic advantage' means advantage gained whether before or during the marriage or civil partnership and includes gains in capital, in income and in earning capacity, and 'economic disadvantage' shall be construed accordingly;

'contributions' means contributions made whether before or during the marriage or civil partnership; and includes indirect and non-financial contributions and, in particular, any such contribution made by looking after the family home or caring for the family....

11-(1) In applying the principles set out in section 9 of this Act, the following provisions of this section shall have effect.

(2) For the purposes of section 9(1)(b) of this Act, the court shall have regard to the extent to which -

(a) the economic advantages or disadvantages sustained by either person have been balanced by the economic advantages or disadvantages sustained by the other person, and

(b) any resulting imbalance has been or will be corrected by a sharing of the value of the matrimonial property or the partnership property or otherwise."

[187] That, however, as Mr Hayhow had said already, had to be seen in terms of a whole scheme of division, unlike the provisions of the 2006 Act, and the requirement to share the burden fairly was not something which appeared in the 2006 Act, which did not look at the wider context of the division of property. I am bound to say that I doubt if the intention of the Scottish Parliament in enacting the 2006 legislation was that the burden should be shared unfairly. Furthermore, sections 26 and 27 appear to envisage at least a partial scheme of division.

[188] Reference was then made to subsection 11(3)(a), (b) and (f) of the 1985 Act, which Mr Hayhow said reflected some of the relevant factors in the current case. These subsections run as follows:

"11 (3) For the purposes of section 9 (1) (c) of this Act, the court shall have regard to -

(a) any decree or arrangement for aliment of the child;

(b) any expenditure or loss of earning capacity caused by the need to care for the child;......

(f) the availability and cost of suitable child-care facilities or services."

[189] It was submitted that section 11(3)(a) was relevant. It was accepted that there was an order made by the CSA for aliment which had fallen into arrears and I should have regard to the fact that the CSA assessment was not being adhered to. That was because when one was looking at the whole economic burden of child care one was assuming that aliment was being dealt with. The economic burden borne by the party was different. If aliment was not being paid then the burden on the party with whom the children were living was increased and aliment came back into the case. Mr Hayhow agreed, however, that there was a problem with double jeopardy in this regard. That was because arrears could be paid up. If I was satisfied that arrears were likely to be met then I should leave this element out of account.

[190] As it happens I do not think it appropriate to take account of the CSA position. That body is in a position to enforce the payment of arrears and I consider this aspect of the case to be irrelevant.

[191] Section 11(3)(b) was relevant under the 1985 Act and it was also relevant here. There was on the evidence a loss of earning capacity suffered by the pursuer and expenditure caused by the need to care for the child albeit some of that burden was borne by the pursuer's father.

[192] Section 11(3)(f) was also relevant because in the current case one should be considering what child care facilities or services were available as well as their cost.

[193] No other particular factors came into play.

[194] While there was a sort of tick list in the 1985 Act the factors therein were not specifically referred to in the 2006 Act. The earlier Act could be looked at as guidance to some extent but one had to look with great care at cases under that Act. Cases under section 9 might provide some examples of how the 2006 Act could be applied but Mr Hayhow did not intend to refer to any authority, nor did he. I regard that as unfortunate.

[195] He turned then specifically to the order sought under section 28(2)(a). He said that on the evidence the defender had enjoyed at least four instances of economic advantage from cohabiting with the pursuer.

[196] In the first place he had his house and children looked after free of charge by the pursuer over the eight years of the parties' relationship. That had allowed him to continue in his career and to develop it.

[197] In the second place he had been able to improve his earning capacity as a result of the cohabitation in terms of his additional qualification. Mr Hayhow conceded that the course was only half way through when the parties separated but on his own admission the pursuer assisted him by allowing him to concentrate on his studies. She was still in fact assisting him even though the parties had separated by looking after the children while he studied.

[198] The defender had accepted that the purpose of obtaining the extra qualification was to improve his earning capacity (albeit in order that he could provide for his family and himself) and very soon he would be in a position to enjoy the benefits of that in terms of paid holidays, pensions, flexi- time etc. That was a significant advantage which was likely to develop the longer his career went on.

[199] In the third place the defender was relieved of his responsibilities for payment of a mortgage because he was living in the pursuer's house. It was not disputed that he received the rent from his own property until it was sold. That sale took place in October 1998. Mr Hayhow accepted that there was no evidence how much the rent was.

[200] At the cessation of cohabitation the defender no longer had a mortgage.

[201] During the course of cohabitation he had discharged a debt over West Park Place (although we did not know how much that was) and he did not have any debt at the end of the cohabitation.

[202] The flat was fully furnished when he moved in. Over the period of the cohabitation a number of things were gifted like carpets but the only thing coming from him was a sofa. The defender had the economic advantage of living in this fully furnished flat and that was a benefit, albeit difficult to quantify.

[203] In the fourth place was the overpayment of tax credits. There was no dispute about the over payment and the defender accepted his obligation to repay them. The easiest way of resolving this was simply to split the liability which would result in a payment by him of £2,555.

[204] Mr Hayhow then turned to look at the economic disadvantages suffered by the pursuer in the context of the section 28(2)(a) order. The principal disadvantage was the restriction placed on her income and earning capacity because she gave up her work to look after the children and her ability to work was restricted by child care considerations.

[205] There were basically three heads of loss. The first of these was wage loss to date from the period when she was either not working or working part-time. That had been the position since December 1998 and I should have regard to the document produced by Caroline McCleery setting out her actual and potential income.

[206] In the second place there was the loss in respect of the increase in value of her pension fund. The figures were to be found in 6/24, Mr Duckworth's calculations, and Mr Hayhow accepted that the first figure of £15,897 should be deducted therefrom since it covered a year with which we were not concerned.

[207] Mr Duckworth's methodology was not challenged and I should accept the figures which he provided.

[208] In the third place there was the loss of opportunity to advance her career and improve her earning capacity as a paralegal.

[209] I was invited to have regard to the evidence of Caroline McCleery and Mr Valente as well as the document to which I have already referred, number 6/35.

[210] The difference in the figures between actual and potential earnings was £117,707 if she had simply carried on on a full time basis. I was invited to take a broad brush approach as to what she might have earned as a paralegal. There was some evidence as to what the difference was in 1998 (£15,000) for a legal secretary and £18,000 for a paralegal and as to the position now (£20-22,000 for a legal secretary and £28-32,000 for a paralegal.) I asked whether, as far as the pension was concerned, I should simply take the figure for the loss and proceed as accords or should I make some deduction due to the fact that the pursuer herself owed obligations to look after the children. I was invited not to do that in considering an order under section 28(2)(a). In looking at advantages and disadvantages one had to carry out a balancing exercise, the purpose being to balance things fairly as far as possible. Counsel was not saying that I should simply award the full sum of the pension loss to the pursuer. I had to take into consideration the fact that the defender had provided for the pursuer over the piece. The pension was an identifiable loss clearly established as arising during the cohabitation and as a result of it. Nonetheless it had to be balanced as between the parties looking at the whole circumstances. Section 11 of the 1985 Act provided for the court to take into account all the other circumstances of the case and Mr Hayhow submitted that I would have to do the same. The 2006 Act could not operate in a vacuum.

[211] As far as the difference between the earnings of a legal secretary and a paralegal were concerned the evidence was that in 1998 it was around 20% (£18,000 as opposed to £15,000) and nowadays it was around 50%. There were of course a number of variables as to when exactly, if at all the pursuer would have taken up employment as a paralegal. Mr Valente said she was ready to do it although she would not necessarily have obtained a job immediately. A colleague had been employed in that capacity from January 2000. The pursuer, on the evidence, was someone who was well thought of. A broad approach had to be taken. It was to be noted that if she had achieved employment as a paralegal then her pension contributions would have been increased also.

[212] He repeated what he had said about the tax credits being divided in two.

[213] He submitted that the financial contributions made by the defender were essentially alimentary. If the defender was discharging an obligation to support himself and the children then that should not be regarded as providing a significant advantage to the pursuer. I should consider to what extent payments were made for the defender himself and the children. The payment had been made to provide a roof over his head and the childrens head but the pursuer was still left at the end of the day with the debt.

[214] There were two loans, one for £26,000 and one for £23,000. At the end of December 2006 the amount outstanding was nearly £44,000.

[215] While there had been a reduction in the overall debt, depending on how one looked at it, there had in fact been an increase since the debt was only £26,000 at the start of the cohabitation. I could not take any account of the defender's suggestion as to the value of the property. 6/18 was not spoken to by its author and in any event merely supplied an illustration. It was apparent from the box which referred to a purchase price or valuation of £200,000 that no valuation had been carried out on the property. What was said is as follows:

"The valuation that will be carried out on the property and changes to any of the information you have given us could alter the information in this illustration."

Accordingly there was simply no evidence as to the property's value. It would have been open to the defender to establish the value of the property in evidence had he chosen to do so but he had not.

[216] It must be said that the same applied to the pursuer, who was legally represented. I regard this as a serious omission. There was evidence that the value of the second loan exceeded the purchase price of the office, the remaining money being put towards the renovation of the premises. This loan was a debt and I simply could not take account of any purported increase in value of which I had heard no evidence. I think that this lacks candour.

[217] There had been evidence that the loans were partly based on endowment and partly repayment. 6/14 and 6/15 were the documents which dealt with the endowment policies and Mr Hayhow submitted that these matters were broadly balanced and effectively should be left out of account.

[218] Assuming that the mortgage was on an endowment basis then all that was being paid was interest and the capital debt remained. Unfortunately there was no evidence as to what part of the loan was covered by the endowment and what part was not so this was fairly speculative.

[219] None of the defender's evidence about his contribution to the renovation of the property was put to the pursuer. She could have answered any questions about that. In any event it had been accepted that the pursuer had employed builders to carry out the work and the loan was greater than the purchase price in order to pay for it. Even if the evidence about the defender's activities were accepted they could not be held to be any more than incidental.

[220] Mr Hayhow said that he was not in a position to say that particular figures could be reached but submitted again that a balancing exercise was required. The balance favoured an award under section 28(2)(a) particularly in relation to the pension loss.

[221] I questioned whether the award should reflect the actual loss of the pension or some notional sum which could be invested to produce the same figure as the loss at the projected retirement date. Mr Hayhow submitted there was simply no evidence about that.

[222] He then turned to section 28(2)(b). On the evidence the burden of child care had fallen on the pursuer. She could only discharge it by relying on her father. It was unfair to expect that to continue with the defender escaping his responsibility.

[223] I queried whether there was an economic burden on the pursuer since her father was assisting her with child care. The burden seemed to be falling on him rather than her. His position was that this was precisely the type of situation with which section 28(2)(b) was designed to deal. It was simply not fair for Mr M to have to undertake a burden which ought to be borne by the defender. If he made the requisite payment then the pursuer could release her father from his responsibility either by paying for child care herself or by remunerating him for his time and expenses. I asked what would happen if a payment was made and her father nonetheless carried on. Could the payment then be regarded simply as a windfall? He said that according to the evidence there might be difficulties with a clash between his teacher training responsibilities and his child care activities. Furthermore his health might not allow him to continue. If money were paid by the defender and Mr M carried on then he would be the one providing the windfall. The person who should be discharging the burden was the defender.

[224] It was no answer for him to say that he would take the children for longer. He said that at present the parties were satisfied with the contact arrangements although I queried whether that was entirely so on the evidence. Mr Hayhow said that the defender had suggested he could take the children for breakfast for example and take them home from school but if he was dissatisfied with contact the remedy lay in his own hands.

[225] Furthermore, if he were to aliment the children in kind for longer periods that might be a matter for the CSA.

[226] In any event I could not simply deal with the matter on the basis that the defender was prepared to exercise more contact. That was a matter which could only be decided in its proper context and having regard to the best interests of the children.

[227] I consider that that submission is well founded.

[228] As far as the costs of child care were concerned I was referred to 6/21, the document relating to the costs of breakfast clubs and after school clubs. I would have to have a look at that carefully and make relevant deductions for times when the defender was looking after the children.

[229] The children were on holiday for around eleven weeks on the evidence and one had to look at the costs of holiday clubs. A broad approach was again required since there would be occasions when the children would not want to go to the holiday club and would rather be with their friends. Furthermore there would be periods when they were with either parent or grandparents.

[230] A figure of around £4,000 per annum was suggested as appropriate.

[231] I would have to consider a multiplier according to Mr Hayhow. The children would have to be cared for until sixteen years of age which was eleven years off for A and seven for M. (The figure is nearer ten years for A). They would obviously require less care as they grew older. If a lump sum was paid then the pursuer would have the advantage of obtaining interest on it.

[233] I questioned whether I could have regard to any child care costs from that date since I had heard no evidence about it. The only evidence I had heard about that was that the pursuer's father had been looking after the children following the cessation of cohabitation, at no cost.

[234] It was submitted that that was nonetheless a burden and should be reflected in the award.

[235] A payment of £20,000 was sought.

[236] I was invited to follow the normal rule that expenses should follow success.

Submissions for the defender
[237] In reply Mr S largely repeated some elements of his evidence. As far as the valuation was concerned he invited me to have regard of 6/7 of process but I told him I could not do so since no-one had spoken to it. I had in fact pointed out to him during his evidence that if he wished to refer to a document he would have to speak to it.

[238] He repeated that the pursuer could have attempted to become a paralegal as early as 1996 and she had not done so. The question of her qualifying as such was hypothetical. The opportunity to do so still existed but she had not taken it up.

[239] He repeated what he had submitted to Mr Duckworth in cross-examination and what he had said in evidence about the pension calculation. He referred to the legislation in 2006 and the fact that before that a person had to be working in order to contribute. Mr Duckworth's figures were based on an employee working five days a week full-time and they were invalid. There was evidence that the pursuer kept two ponies, chickens and dogs. If that was a priority rather than her pension then that was a matter for her.

[240] She had never shown any inclination to take up the post of paralegal despite VMH's policy of encouraging this. It was hypothetical to say that she would get a job in the firm. That therefore should be discounted also. As far as her loss of earnings from reduced hours was concerned, it had been put to her and to her father that she could increase her hours by taking up the option of the child care which he was prepared to undertake. Caroline McCleery, he said, had confirmed that a former colleague with a young child had become a paralegal.

[241] It had been suggested that the defender had been economically advantaged but that he had not been. That was not the case. He was in debt. He would not be representing himself if he had the funds to pay for a lawyer. He had no funds to cite witnesses. He submitted that when he was being cross-examined Mr Hayhow had argued that he had no option other than to pay the mortgage in order to keep a roof over his head but that now that he had a mortgage that was a matter for his choice. He had now opted to pay a mortgage rather than use the money for other things and the same applied when he was at his previous address. He opted to pay the mortgage then and was doing so now.

[242] It was not any advantage that he was now a young single man. He had commitments and had become a father because he wanted to.

[243] There was some speculation about the rent for West Park Place. It had been suggested that both parties had agreed that the rent had been retained by him. That had not been put to him and he did not agree with it. Any money received by the parties was regarded as being in the one pot. The fact he was earning more than the pursuer was irrelevant to him. They were living as husband and wife. He had not yet taken up his new position so he did not yet have the advantages of flexi-time, pension etc. That had not been done because he did not have the documents which he had requested for his previous address. They only arrived a couple of weeks previously. He was not earning anything like £48,000 a year. Even in his new position he would only be receiving around £32,000 a year. Even then he would still be struggling to meet the payments on the house. That was the first time he had mentioned his prospective salary, no evidence having been given about it. There was never any indication what his current income was.

[244] As far as child care was concerned he said that his grandparents took care of their grandchildren and his parents did the same for a nephew. His father had four grandchildren and set aside money for them each month. Again there had been no evidence about this. There was room for both sides to participate.

[245] As far as mortgage payments were concerned he said that when he was at his previous address the payments were purely an advantage for Ms M. Her property had gone from a one bedroomed flat to a three bedroomed flat which was obviously a considerable increase. The difference between the mortgage as it was in 1998 and now was insignificant compared to the difference in the value of the property.

[246] The mortgage used to be endowment based but was changed to repayment (there was no evidence about exactly when this happened).

[247] It was said that the economic burden of the care of the children was not disputed. He had however disputed it and he also shared it. That burden required that he provide a roof over his head for the children as well as for him. He provided a bedroom and beds for them and everything they needed while they were in the house. He had to pay for the mortgage because he needed a roof for himself and the children.

[248] He also submitted that there was no breakdown of the claim for £50,000 or for that matter the claim for £20,000. A figure of £4,000 per year had been raised but that was not substantiated in the evidence.

[249] In any event he did not have any resources to meet these claims.

[250] As far as expenses were concerned he had no option but to defend the action. He did not see why he should have to pay expenses.

[251] He accepted his obligation to repay a share of the overpaid tax credits.

Discussion
[252] I was informed at the outset by Mr Hayhow that this is the first time that the financial provisions of the 2006 Act have been judicially considered. That is daunting enough in itself but I have to confess that in approaching this matter I feel at a distinct disadvantage. In the first place, while I mean no disrespect whatsoever to the defender, it would have been helpful to have the benefit of submissions from counsel on each side. Secondly, as may appear from my narrative, the evidence as to the parties' financial positions was, on a number of important matters, vague, to say the least.

[253] It seems to me that when one is discussing economic advantages and disadvantages the greatest care should be taken to provide the court with as much information as possible. I was certainly provided with details of the pursuer's income and pension position as well as a snapshot of the mortgage position. In addition I was provided with costings in connection with extra-curricular activities at school.

[254] I am afraid that I do not understand why it was not thought appropriate by those advising the pursuer to obtain and lead evidence of the value of the property in which the parties cohabited. This is obviously a substantial asset to which there is no doubt the defender contributed and the failure to provide evidence as to its value is a significant one.

[255] Furthermore, I do not quite understand why it was not thought necessary, even if no evidence was sought by way of specification of documents, to question the defender about his income rather more closely than was done. I did not feel that it fell upon me to undertake this questioning myself. To some extent the defender can be excused as not being legally qualified.

[256] I have to proceed as best I can on the evidence and submissions presented to me but I am afraid that my own shortcomings in dealing with the matter will be amplified by the omissions to which I have referred and this case may prove to be of less assistance to others who follow than it might otherwise have been.

[257] As far as the evidence generally was concerned, I found all of the witnesses generally credible and reliable. There were perhaps variations in degree and emphasis as between the pursuer and the defender but I did not think that either of them were deliberately overstating his or her case or attempting to mislead, other than the fact that the defender's evidence as to his income did not display the candour which one might have expected.

[258] All of the pursuer's witnesses were plainly credible and reliable and their evidence was supported by the documentary productions. I have to say that in particular I found her father to be, if I may say so, a delightful individual who was plainly thrilled to be able to assist with his grandchildren and was obviously willing to carry on doing so as long as he was able.

[259] Many of the salient facts are not substantially in dispute but there were a number of matters on which the evidence was quite insufficient, although I can understand why that should have been so. It was not at all clear how much rental was obtained by the defender from his flat and the position about the family car or cars as well as the animals was not really quantified in financial terms. I can only take account of these matters generally.

[260] I think it might be easiest if I approach the matter in the same order as Mr Hayhow did. Before I do that I think I ought to make one or two further general observations. In the first place it seems to me that the discretion afforded to the court is very wide indeed. Some comparisons were drawn by Mr Hayhow between the 1985 Act and the 2006 Act but the latter contains much more material from which the intention of Parliament can be gleaned. It is not clear to me why some greater concession to a concept of community property was not included in the 2006 Act, (pace sections 26 and 27) but there it is.

[261] Mr Hayhow indicated that it might be thought that the lack of provision requiring the courts to have regard to resources was a flaw in the legislation. Again I make no particular comment on that other than to suggest that it might be that courts will be slow to make an award which will plainly be unenforceable. Thirdly, while the courts are used to making attempts to predict the future, for example in awarding damages in personal injury cases, I am not entirely clear why it was felt that it was appropriate for them to try to make such a prediction in relation to the cost of looking after children. There may be some good reason why periodical payments in respect of children, which could be varied from time to time, were not thought to be appropriate but for the moment I cannot think what that reason might be. I am not aware of the courts having been inundated with applications to vary periodical allowance or aliment for children when circumstances change so I do not know what the difficulty is, or was thought to be.

[262] Section 28(2)(b) seems to me to have the potential for injustice built in. It might be far better if these matters fell within the ambit of the Child Support Agency to be considered along with aliment or at least if the court were given the power specifically to order periodical payments in respect of the costs of child care which could be varied from time to time on a relevant change of circumstances.

[263] Be all that as it may, the Act stands as it does and so I must deal with it.

Section 28(2)(a)
[264] The pursuer seeks payment of a capital sum of £50,000, with interest. In deciding whether or not to order such payment I have to carry out a balancing act based on the evidence which I heard, such as there was. In doing this I think I will have to approach the matter broadly, recognising that the contributions parties make to a relationship cannot always be measured in economic or financial terms. Even those which can be so measured cannot always be measured accurately. I do not think that I can ascribe any particular figure to the rental from the defenders' flat or to the evidence about the cars. Equally I leave out of account the horses and other animals and the furniture. I do not understand that any furniture was taken away and the position about that is essentially neutral.

[265] I have already indicated that I take no account of the arrears of child support. I am at something of a disadvantage not knowing what assets each party now has, except in general terms.

[266] The pursuer accepted that the defender contributed to household bills and was the breadwinner when she was not working. When she was working she contributed to bills and also put money into the bank, some of which went on her own pursuits.

[267] The defender made the mortgage payments after M was born and also applied some of his money to his own interests. I have little difficulty in accepting that this was the position.

[268] It must be a very unusual relationship where parties, from day one, account for every penny in order to know which of them contributed what and this relationship did not fall into that category.

[269] As a starting point I think it appropriate to consider whether there is any relationship between the provisions of the 2006 Act which are under discussion here and those provisions of the 1985 Act to which counsel referred.

[270] Plainly they come into play in a different way. As counsel submitted, the 2006 Act's provisions do not appear within the context of a scheme of division of property. The 1985 Act's provisions on the other hand, come into play where one is considering what factors may justify a departure from equal division of matrimonial or civil partnership property. They seem, in other words, to be approaching the problem from different directions.

[271] Does that mean that they fall to be construed differently? In my opinion the answer is no. In enacting the Family Law (Scotland) Act 2006, and in particular the sections under consideration, the Scottish Parliament must have been aware of the 1985 Act and the way in which the particular provisions I am discussing have been treated by the courts.

[272] The provisions, although not absolutely identical, are so similar in my opinion as to make it clear, at least to me, that the Scottish Parliament must have intended the courts to approach them in the same way.

[273] They must also have been aware of the treatment of the 1985 Act's provisions in such cases as Loudon v Loudon 1994 SLT 351, Welsh v Welsh 1994 SLT 828, Adams v Adams (No 1) 1997 SLT 144 and Ali v Ali (No 3) 2003 SLT 641.

[274] In delivering the Opinion of the Extra Division in Ali, Lord McCluskey said the following at page 647:

"All that was averred was that the respondent had given up work to look after the family and to assist with the running of the farm, thus suffering economic disadvantage, and that she was 'entitled to a fair sharing of the matrimonial property as detailed above.' Such - fairly standard - averments would not properly be prayed in aid to justify an unequal distribution. These are exactly the averments that a wife pursuer quite properly and routinely makes when she has become the homemaker after marrying and has thus enabled the husband to continue to be the breadwinner; the making and proof of such averments is seen as justifying an equal sharing of the matrimonial property even although the actual monies have been earned by the husband and the properties and assets are in his name or in the name of a firm or company in which he is the principal actor; in such circumstances, the equal distribution of the matrimonial property is, in the absence of other special circumstances, seen as fair. In this regard we refer to the Opinion of Lord Osborne in Welsh v Welsh, and, in particular, to the passage at 1994 SLT, p. 835: 'I have come to the conclusion, in the light of the facts which I have found and of the foregoing arguments, that the net value of the matrimonial property available in this case should be shared equally between the parties. The pursuer's argument to a contrary effect was based upon the terms of s. 9(1)(b), in association with the provisions of s. 11(2) of the Act of 1985. While it is plain that the pursuer herself suffered an economic disadvantage in the interests of the defender and her children, insofar as she gave up quite well paid employment to look after her family, it appears to me to be equally plain that she enjoyed certain associated economic advantages in the same situation, in respect that she was subsequently maintained exclusively from the earnings of the defender during the period in which she had no employment. Furthermore, in the allocation of matrimonial property which I propose to make, she will enjoy the results of the mortgage payments made exclusively by the defender during the period of time in which she was not employed. It appears to me also that, in consequence of the pursuer giving up her paid employment, the defender himself sustained an economic disadvantage, in respect that he was thus rendered the sole breadwinner for the family, assuming the responsibility for maintaining, not only his children, but also the pursuer herself. In the whole circumstances I am unable to decern any significant imbalance in the situation of the parties in relation to economic advantages and disadvantages. In these circumstances I see no reason, based upon s. 9(1)(b) to depart from equal division'.

We also refer to the similar treatment of a similar issue by Lord Gill in Adams v Adams (No 1), at 1997 SLT p. 148."

[275] Of course in the current case there is no question of allocation of matrimonial property or its equivalent allowing the pursuer to enjoy the results of mortgage payments made by the defender but she does remain in a property in respect of which he did make such payments.

[276] In Adams Lord Gill said the following at page 148:

"The pursuer next relies on s 9(1)(b) (as read with s 9(2) and s 11(2).

She argues that the defender has enjoyed an economic advantage in that he has been able to further his career whereas she has prejudiced hers by bringing up the children. I accept that the pursuer has suffered an economic disadvantage in this respect. On the other hand in all the years during which they lived together, the defender contributed more than the pursuer to the household finances and during the period when she was out of employment, he supported the family on his own. It is not suggested that the defender ever failed to maintain the family in a good standard of living. In my view this is a counterbalancing consideration which I am entitled by

s 11 (2) to apply. The pursuer's economic disadvantage is not the worst that she could have suffered. She was able to return to her professional employment soon after the birth of each child and she has for some considerable time been in full-time pensioned employment and making her own contributions to a top up pension. I distinguish this case from a case such as Loudon v Loudon where the property was decided in the proportions 55/45 per cent in the pursuer's favour largely on the basis that the pursuer was untrained and had no pension and that there was a great disparity between her assets and those of the defender (at 1994 SLT p 385C). I distinguish this case also from McCormick v McCormick, where the wife was at a disadvantage in that it would be difficult for her to gain employment at her age in her former profession (at p 10); and from Cunniff v Cunniff where the wife who received a transfer order had not worked for over 20 years, had an earning power not remotely comparable with that of her husband and, if not given the matrimonial home, would not have been able to afford alternative accommodation (at pp12-13). I conclude therefore that in this case an unequal division in the pursuer's favour is not justified by s 9(1)(b)."

[277] In that case, of course, there was evidence that the defender had contributed more than the pursuer to the household budget.

[278] In Loudon Lord Milligan said the following at pages 384-385:

"I have considered carefully counsel's submission on the question of the appropriate allocation of the matrimonial property. I am left in no doubt whatsoever that this should be an allocation in which, in the whole circumstances, the pursuer receives more than 50 per cent of the matrimonial property. I accept the submissions by counsel for the pursuer in preference to those of counsel for the defender on this matter. I find that on the question of economic disadvantage the pursuer is left economically disadvantaged to a material extent. It is said by counsel for the defender that any economic disadvantage which the pursuer may have is balanced by the advantage she has in having been married to so successful a businessman. I do not accept counsel's approach on this matter. As already mentioned, it is clear that the defender was a successful businessman throughout the parties married life together. While he was carving out a successful career, and indeed supporting the pursuer and their daughter well, the pursuer was looking after the house and their daughter over and above the parties' respective care of each other. The pursuer worked before the marriage but did not do so during the marriage. That she did not do so was not, I accept, due to any absolute insistence on the part of the defender that she should not work, but I interpret the evidence as indicating that he was content for her not to work. The defender is now well launched on a business career where he can command a high salary, currently apparently some £58,000 after tax per annum. The pursuer, on the other hand, requires to retrain in order to get back, as she put it, on the employment ladder. This she requires to do at the age of 45 years, which may well be problematical, at least so far as ending up with a well paid job is concerned. The difference between her earning potential now and what she would probably have been earning but for her marriage to the defender cannot be calculated with any accuracy but I think it reasonable to conclude that the pursuer has suffered a material economic disadvantage in this connection."