OUTER HOUSE, COURT OF SESSION [2008] CSOH 95 |
|
F179/07 |
OPINION OF LORD TURNBULL in the cause LINDA COLLIE PATERSON or BAIN Pursuer; against RODERICK HAY BAIN Defender: ________________ |
Pursuer: Wylie, Beveridge & Kellas
Defender: Innes, Morisons LLP
Introduction
The Pursuer's Case
[2] The
pursuer gave evidence herself and led evidence from her son Crichton Bain. The pursuer gave a background to the parties'
marriage and to the difficulties which had come to be present. She and her husband had lived for many years
in the family home, Denside House, at Torphins, Banchory. When their sons were younger they were both
very keen swimmers and the parties encouraged this interest. For this and other reasons they decided in
1990 to purchase a flat in
[3] In
September 2003 the parties took a holiday together in
[4] In
about December 2004 the pursuer came across an e-mail sent by the defender to
what seemed to be a prostitution site and also discovered that her husband
appeared to have been advertising his dental practice for sale, a matter she
had known nothing of. She confronted him
with evidence of these matters and a row ensued. The defender left Denside House saying he was
going to live at the flat. On the
pursuer's evidence he remained living there thereafter but visited her at
Denside House, sometimes staying for short periods of time, and she regularly
stayed with him at the flat. On her view
of matters the parties continued to live as husband and wife but in less than conventional
circumstances. Her position was that
throughout, and until May 2007, she had hoped and expected that they would
return to live together full time in a conventional married style. To explain this view she was taken through a
history of her contact with the defender throughout this period of time. She gave this evidence with the assistance of
diaries which she had kept and which were lodged as productions. In these diaries she had noted the dates on
which she had spent the weekend at the flat in
[5] Later in May of 2007 the pursuer came to suspect that the defender had been in contact with other women through adverts in newspapers. She confronted him with what she had learned. She decided that their marriage was over and instructed that divorce proceedings be commenced. She had not spent time with him since.
The Defender's Contentions
[6] The
defender's contention was that after the December 2004 argument he had been put
out of the matrimonial home. He accepted
that thereafter he and the pursuer spent time together in the ways described by
his wife, but disputed that she stayed at the flat in
Submissions
[7] In
presenting her submission Miss Wylie recognised that in three letters between
March 2005 and May 2007 (numbers 6/22, 6/23 and 6/25 of process) the solicitors
acting for the pursuer had written to the defender stating that she considered
the marriage to have broken down irretrievably.
Despite the terms of these letters Miss Wylie contended that the date on
which the parties ceased to cohabit was May 2007. She drew my attention to the terms of section
10(7) of the Family Law (Scotland) Act 1985, which provides that in identifying
the date on which the parties cease to cohabit no account is to be taken of any
cessation of cohabitation where the parties thereafter resumed cohabitation,
except where the parties ceased to cohabit for a continuous period of 90 days
or more before resuming cohabitation for a period or periods of less than 90
days in all. Miss Wylie's
contention was that whilst there may have been times when the parties were not
living together as man and wife there were also times when, fairly viewed, they
were. Accordingly, on this approach,
there was no period of 90 days or more between December 2004 and May 2007 when
they were not having conjugal contact or spending time together in ways which
fell to be defined as living together as husband and wife. According to this submission the period
between December 2004 and May 2007 was one which was characterised by regular
mini reconciliations between the parties.
She referred me to the cases of Banks
v Banks 2005 FamLR 116, Brown v Brown unreported
Discussion
[9] There
was clear evidence of the parties spending time together after December
2004. Yet at the same time it was also
clear that they had not returned to full time cohabitation in any conventional
sense. There was evidence that the
defender had engaged in conduct which was consistent with a wish on his part to
return to a normal relationship. As was
noted in the pursuer's diary, he had taken her roses on Valentine's day. He arranged holidays for them. He arranged to celebrate her birthday and
their wedding anniversary. However these
efforts did not result in him returning to live at Denside House. Nor did they result in the pursuer moving in
to the flat in
"It is our client's view that the relevant date of separation would be December 2004".
In May of 2007 (No. 6/25) the same
solicitors wrote to the defender pointing out that they understood there had
been a brief reconciliation over recent weeks leading to a further
separation. This correspondence appeared
to me to be consistent with the defender's account that the pursuer never
reached the stage where she was prepared to allow him to return to live with
her. His evidence was consistent with
the terms of his own letter dated
[10] The question of when the parties ceased to cohabit is one of
fact to be determined having regard to section 27(2) of the Family Law
(Scotland) Act 1985, which provides that the parties to a marriage shall be
held to cohabit with each other only when they are in fact living together as
man and wife. It is a matter to be
decided objectively. Accordingly the
examples of decisions arrived at by other judges in other cases may not be of
particular assistance. However, what is
clear from the cases to which my attention was drawn is that the nature of the
relationship which existed between the parties during the period of admitted
cohabitation may be a factor which casts light on the nature of any subsequent
relationship. So in the case of Banks
v Banks Lord Carloway held that
throughout a period of years when a husband worked abroad and often stayed in
hotels on his return to Scotland, the parties could still be categorised as
living together as husband and wife.
This was because of the similarity of this relationship to the one which
existed prior to his departure. The
parties had long prior to his departure ceased to have sexual relations and
spent little or no time together, with the pursuer working constantly and
living much of the time in hotels. By
contrast, in the present case, the parties lived in a recognisably conventional
marriage up until December 2004. The
defender's encounter with a prostitute during 2003 clearly triggered a deterioration
in their relationship. Although the
pursuer made efforts to keep their marriage intact the discoveries which she
made at the end of 2004 were sufficient to underpin the lack of trust already
present. From that point onwards an
obvious and quite radical alteration in their relationship occurred. Various entries in the pursuer's diaries, as
explained by her in evidence, to my mind confirmed that thereafter they were
living separately but contemplating reconciliation. Accordingly I was satisfied, on the balance
of probabilities, that the parties ceased cohabiting as at