Scottish Court of Session Decisions

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URL: http://www.bailii.org/scot/cases/ScotCS/2008/CSOH_95.html
Cite as: 2008 Fam LR 81, [2008] CSOH 95, 2008 GWD 22-362, [2008] ScotCS CSOH_95

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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

27 June 2008

Introduction

[1] This is an action of divorce. The parties married on 31 July 1975 and have two sons, both now adults. The pursuer has a daughter by a previous marriage. In addition to decree of divorce the pursuer seeks various financial orders. The defender also seeks orders in relation to the parties' heritable property. One of the contentious issues between the parties is the date on which they ceased to cohabit. The pursuer contends that this date was 16 May 2007 whereas the defender contends that it was 15 December 2004. No doubt the resolution of this issue will be of relevance to the valuation of the financial claims outstanding. Evidence was led before me by way of a preliminary proof, restricted to establishing the date on which cohabitation ceased.

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 Aberdeen, at 12A Whitehall Mews. Their son Crichton had lived in the flat whilst at university in Aberdeen. When he left in about 1999 the parties had the property refurbished and used it for themselves. They came to spend many weekends at the flat and to spend the remainder of the week at Denside House. They had a mutual interest in football and regularly attended Pittodrie on Saturday afternoons. The flat was convenient for this purpose and generally to permit them to socialise in Aberdeen. In addition, the pursuer worked in Aberdeen. She worked part time but for long days. It suited for this purpose to stay in the flat on Sunday and Monday evenings.

[3] In September 2003 the parties took a holiday together in Australia and Singapore. Some time thereafter the pursuer discovered that whilst on holiday the defender had visited a prostitute and had contracted a sexually transmitted disease. She discovered that it had been passed onto her. This news came as a great shock to her. The defender was very remorseful and they attended counselling together, although he only participated in one session. Thereafter, from the pursuer's perspective, a healing process commenced with the defender trying to regain her trust. Despite this process, in October 2004 the pursuer consulted a solicitor and on her instructions a letter was sent to the defender, dated 8 October 2004, in which it was stated that she considered the marriage to have broken down irretrievably. It would seem that the defender ignored this letter and may not even have opened it.

[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 Aberdeen and the dates on which the defender visited Denside House. She had also noted other contact which they had together. In addition to spending time together in these ways the pursuer explained that she and the defender had holidayed together. By reference to the diaries she explained that they had gone on a cruise to South America over the period of Christmas and New Year 2005 to 2006. In September 2006 the defender had taken her on holiday to Paris to celebrate her 60^th birthday. In the early part of 2007 they had looked at properties together in various locations. In February the defender had suggested that she should put a deposit on a property. In May of 2007 they had visited the Isle of Skye together.

[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 Aberdeen as often as she claimed. His evidence was that when she did so it was essentially as a convenience for her work and that on such occasions he generally slept on the couch. He accepted that they had holidayed together, that he had bought her gifts, that they had socialised together and had regularly attended football matches together. He explained that when they did so they would frequently have a meal afterwards in Aberdeen and then go their separate ways. The defender's account of matters was that he had not wished a divorce and had frequently asked the pursuer to permit him to return to live at Denside House. According to his evidence, she had not allowed him to do so, but had held open the possibility of reconciliation. He had frequently asked her to take him back and was waiting for her to give a definitive answer. His contention was that he had arranged holidays for them, bought her presents and kept in contact in the hope that matters would be resolved between them. He was referred to letters of 28 November 2006 and 24 May 2007, written by him in response to letters from the pursuer's solicitor, in which he set out his understanding of their circumstances.

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 21 June 1996, Brown v Brown unreported 27 May 2003 and to Clive on Husband and Wife pages 398 - 402 and 444.

[8] For the defender, Miss Innes submitted that the question of when the parties ceased to cohabit was one which had to be determined in the context of their own marriage. A significant change in their relationship occurred in December 2004 and thereafter their relationship was clearly different from what had preceded. It was not an unconventional marriage, it was a different type of relationship. That the parties had not reconciled was evidenced by the fact that throughout the relevant period the pursuer was consulting her solicitors. Their repeated assertions that the marriage had broken down irretrievably was inconsistent with a continuing but unconventional married life. On her submission the evidence vouched the conclusion that the parties had remained in contact, on a friendly basis and that throughout most of the period at least, there was an ongoing question over whether they would return to living together as man and wife, or whether the efforts made to bring this about would come to nothing.

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 Aberdeen. The pursuer's evidence was that in the early part of 2005 everything continued as normal and their marriage continued as before. This was an unrealistic and inaccurate assessment of their situation. At various times in her evidence, when taken to entries in her diaries recording visits to or by the defender, the pursuer commented that their relationship was good at that point and that there were no problems at all. Despite this their circumstances did not alter. Such comments made sense in the context of a couple who lived apart and were working towards a reconciliation but were very difficult to understand otherwise. She repeatedly stated that they had lovely or wonderful times together on their various holidays, but offered no explanation as to why they then went their separate ways on return. In the same vein, she stated that they were both miserable when apart, that the defender regularly told her this and that they both wanted everything to be fine. Why, on this account, they did not reconcile in any conventional sense was left unexplained. The letters written by the pursuer's solicitors went some way to providing an answer to this question. In March of 2005 (No. 6/22) they wrote asserting that the pursuer considered the marriage to have broken down irretrievably, noted that the defender had moved out of the matrimonial home and requested financial information from him prior to taking steps to dissolve the marriage. In October 2006 (No. 6/23) they wrote pointing out that they acted for the pursuer in connection with the breakdown of the marriage. In this letter they noted that certain attempts had been made to effect a reconciliation but that their client's view was now that the marriage had broken down irretrievably. They explained that she wished them to enter negotiations regarding a financial settlement prior to raising divorce proceedings and said the following:

"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 28 November 2006 (No. 6/24) to the pursuer's solicitors in which he stated that "during the past two years there was reconciliation in the air". Overall the evidence led me to conclude that the parties were living in a state of civilised separation, in which the pursuer had not ruled out the possibility of permitting an eventual reconciliation. From time to time she appeared to contemplate bringing matters to a head by instituting divorce proceedings, was persuaded out of this and finally decided to do so in May 2007. The evidence of Crichton Bain did not advance matters one way or the other.

[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 15 December 2004 and that this is the relevant date for the purposes of section 10(3)(a) of the Family Law (Scotland) Act 1985.