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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> HELENOR ELSPETH FAICHNEY OR SAMURAI AGAINST FARIS YOUSIF AL-SAMURAI [2014] ScotCS CSOH_95 (06 June 2014)
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Cite as: [2014] ScotCS CSOH_95
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| OUTER HOUSE, COURT OF SESSION
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| [2014] CSOH 95
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| OPINION OF LORD DOHERTY
in the cause
HELENOR ELSPETH FAICHNEY or SAMURAI
Pursuer;
against
FARIS YOUSIF AL-SAMURAI
Defender:
________________
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Pursuer: Ennis; Turcan Connell, Solicitors
Defender: Malcolm; Ledingham Chalmers, Solicitors
8 May 2014
Introduction
[1] In this divorce action I heard a preliminary proof restricted to the issue of the “the relevant date” in terms of the Family Law (Scotland) Act 1985, s. 10(3). Section 10(3) provides:
“In this section “the relevant date” means whichever is the earlier of –
(a) … the date on which the persons ceased to cohabit;
(b) the date of service of the summons in the action for divorce…”
Section 27(2) provides:
“For the purposes of this Act, the parties to a marriage shall be held to cohabit with one another only when they are in fact living together as man and wife.”
[2] The proof had been set down for two days commencing on 6 May 2014. Evidence was concluded on the second day and I heard closing submissions before the luncheon adjournment on 8 May 2014. I gave an ex tempore judgement later that afternoon. I was advised on 21 May 2014 that a reclaiming motion had been marked.
[3] The pursuer and the defender were married at Perth on 17 December 1966. The pursuer was then aged 19 and the defender was aged 22. They have one child, a son, Laith Faris Samarai, who was aged 47 at the proof. For many years the parties have lived in their current house in Bridge of Don. The parties and their son have all worked in the family business for many years.
[4] In terms of a joint minute (no. 15 of process) the parties agreed:
“…
2. That the parties continue to reside within the former matrimonial home at ..., Bridge of Don, Aberdeen.
3. The parties jointly own a property at ..., Putney, London …This property is free from any security in respect of it.
4. As at April 2013 both parties were employed by Caledonian Airborne Systems Ltd. The pursuer worked within the company office. The defender was the managing director.
5. The shares in Caledonian Airborne Systems were wholly owned by Beginextra Ltd. Until 31st May 2013 the defender owned 239 shares in Beginextra Ltd. There are 240 issued shares in this company. The remaining issued share was owned equally between the defender and Mr David Smith, Company Secretary.
6. On 31st May 2013 the defender transferred his shares in Beginextra to the parties’ son, Laith Samurai.
…”
[5] In 2013 the defender was seeking an overdraft facility for Caledonian Airborne Systems Ltd (“the company”). The defender was prepared to grant the bank a security over the Putney property. The pursuer disagreed. The disagreement was a source of tension between the parties. Following a heated day at work on 26 April 2013 the defender gave the pursuer a written request to take paid leave. The pursuer refused to comply with that request for some weeks, continuing to come to work, but since then she has been on paid leave. The pursuer arranged a telephone consultation with English solicitors. This took place on 13 May 2013. She sought advice in relation to divorce and protecting her interest in the Putney property. The following month she consulted Scottish solicitors. By letter dated 18 June 2013 those solicitors wrote to the defender in the following terms:
“Dear Sir,
Helenor Samurai
We refer to the above and write to confirm that your wife has instructed us to act on her behalf in respect of all matters arising from the difficulties in her marriage to you. Sadly your wife has reached the view that your marriage has broken down irretrievably and in due course she will wish to be divorced from you. She hopes that you will both be able to deal with all matters arising from your separation amicably and as constructively as possible, and with that in mind, we would respectfully suggest that you consult a lawyer of your choosing with experience in family law matters so that there can be an exchange of information, and a negotiated settlement to follow…”
[6] The summons was served on the defender on 11 September 2013. In the summons the pursuer averred:
“On 18th June 2013 the pursuer’s Agents wrote to the defender advising him that the pursuer considered their marriage was at an end. Said date is hereinafter referred to as the ‘relevant date’.”
By adjustment dated 18 November 2013 the pursuer inserted the following averments between the above two sentences:
“Prior to this date she continued to persevere in her marriage. From this date she considered that she could no longer tolerate his behaviour towards her. There was no prospect of reconciliation from this date.”
By adjustment dated 25 March 2014 the pursuer deleted the said inserted averments and made the following averments:
“On 9th May the pursuer contacted solicitors in England seeking advice regarding divorcing the defender. She spoke with a solicitor on 13th May 2013 regarding this. The pursuer considered that her marriage was over at that date. There was no prospect of reconciliation. This date is hereinafter referred to as the relevant date.”
[7] The pursuer’s position at the proof was that the relevant date was 13 May 2013, failing which the date of receipt of the letter of 18 June 2013. The defender’s position was that the parties had continued to live together as man and wife, and that the relevant date was the date of service of the summons.
The evidence
The pursuer’s case
[8] Oral evidence was led from the pursuer and Julia Marafie. Reliance was also placed on the affidavit from Camilla Thornton (no. 10 of process).
[9] The pursuer described the parties’ circumstances. The defender worked long hours. He worked seven days a week. In her view he drank to excess - at home and at work. He was, she said, domineering, bullying and intimidating towards her.
[10] The pursuer worked shorter hours. She also had other interests and friends. The parties spent time together at work and at home. At home, they ate their meals together. They watched television together. They did not socialise much together with others - perhaps attending family celebrations two or three times a year.
[11] The pursuer had done most of the domestic chores - cooking, cleaning, laundry and the like. The defender did some of the shopping and some other tasks such as taking bins out. They shared the responsibility of paying bills for outgoings.
[12] Towards the end of 2012 and the beginning of 2013 the pursuer was aware that the defender was looking for sources of finance for the company. Her perception was that there were cash flow difficulties. At first the pursuer had suggested to her, casually, that the Putney property could be used as security for borrowing. The pursuer was not prepared to countenance that. She told the defender that. At their age she was not prepared to jeopardise her personal financial security for the sake of the company. In about 2007 funds for the company had been borrowed using the Putney property as security. The borrowings had only recently been repaid. Over the years the defender had on occasion written letters to the pursuer setting out financial matters (e.g. 6/63 of process).
[13] The defender had become more insistent about raising finance using the Putney property. In April 2013 the pursuer had received a letter from RBS dated 9 April 2013 (6/18 of process) in relation to the proposed security and requesting written confirmation from her solicitor that he had fully explained the relevant documents to her and their legal and practical implications. She had not responded to the letter or discussed it with the defender. She had had no intention of agreeing to the transaction.
[14] A few days later the defender had invited her into his office at work. He had been determined she should go along with what was proposed. He had asked her to go and speak to a solicitor about it. He had been very angry and belligerent about it. After that she had been badgered continuously about it. Her son had also put pressure on her to agree to it. On 26 April 2013 there had been a meeting at work with the defender and their son to discuss it. The defender had picked up a glass photo frame and smashed it to smithereens against a wall. She had been shocked and very frightened. She had left the meeting. The pursuer accepted that on that day she had raised her voice at times, but she maintained that there had been no loss of temper on her part. On the same day the defender had given her a letter in the following terms:
“ CALEDONIAN
AIRBORNE
SYSTEMS
26.4.2013
Dear Lynn,
Paid leave of absence
Today’s exhibition of temper and feelings for the benefit of the employees has been far too damaging for a small company.
I tried three times to ask you to lower your voice but to no avail.
Until I settle my banking affairs which may take some months, please be advised that you will be on full salary for this period yet I ask you not to attend work.
Thank you
Faris Samarai”
[15] At first the pursuer had not complied with the request in the letter. She considered that the defender had no grounds for asking her to take paid leave. She continued to attend work for about a further two weeks. Since then she had not gone in to work. At home the defender had continued to badger her about using the Putney property as security. He had threatened to force a sale of the property. He had said that she knew what the consequences of that would be likely to be - a fire sale and divorce. The pursuer had been shocked at this.
[16] In about April 2013 the defender had moved to a spare room to sleep. It had been his choice. When he had indicated he was going to sleep there the pursuer had cleared the room for him and prepared the bed. Prior to April 2013 they had shared the same bedroom (although they had not had marital relations for several years). On occasions when the defender had been travelling, or had difficulty sleeping, or after a row, he had slept in another room for periods. In the past he had always returned to sleep in the marital bedroom. She thought that on this occasion he was separating himself from her. He was making some sort of statement.
[17] On 9 May 2013 the pursuer had telephoned English solicitors, Russell Cooke LLP, with a view to getting advice in connection with divorce and protecting her interest in the Putney property. A telephone consultation with a solicitor, Camilla Thornton, took place on 13 May 2013 when advice was given in relation to those matters. The pursuer was advised that in view of her habitual residence in Scotland she should consult Scottish solicitors in connection with any proposed divorce proceedings. Shortly after 16 May 2013 she had received a follow up letter from RBS (6/20 of process).
[18] By 13 May 2013 the pursuer had concluded that her marriage was over. She no longer trusted the defender in view of recent events. She felt that he was putting the company’s needs above her needs. She was subjected to a “relentless onslaught for me to put myself into debt late in life”. She felt anxious and under pressure.
[19] The defender instructed solicitors to write to the pursuer. Those solicitors, Stronachs, wrote to her by letter dated 31 May 2013 (6/21 of process). The letter asked the pursuer to consult solicitors with a view to agreeing to have the Putney property sold; failing which the defender intended “to take legal steps to ensure that the property is sold and the proceeds divided”. Receipt of the letter increased the pursuer’s anxiety.
[20] In June 2013 the pursuer consulted Turcan Connell. She instructed the raising of divorce proceedings. Turcan Connell sent the letter dated 18 June 2013 to the defender.
[21] Throughout the period between April 2013 and service of the summons the parties continued to live in the matrimonial home. The domestic arrangements continued very much as before. The pursuer did the cooking, cleaning, laundry and all the household tasks she had always done. The parties ate meals together and watched television together. The financial management of household bills remained the same. The pursuer saw the defender off at the door when he went to work. The pursuer said that that was to make sure the door was not left open and to demonstrate that she was up and ready to get back to work. Her rationale was to keep the peace “Don’t engage, don’t enrage”. Doing the household tasks had given her a routine. She had standards which she did not want to slip. Had she left the defender to fend for himself the house would have been left dirty and untidy. The defender had continued to profess love and affection for her. He brought her flowers. He kissed her hand. He told her he loved her. Since the letter from Turcan Connell he had told her that he would never let her go. These declarations had not made her feel loved. She did not want them. They made her feel threatened and imprisoned. She felt there was no truth in them. She had asked him to leave in June and in July but he had refused. She had remained because it was her home and the place where her support network was. She accepted that the averment in the summons that the relevant date was 18 June 2013 was based on information she had given her solicitors, and that she had told them that that was the date she considered the marriage to be over. However she felt that her marriage was over when she phoned Ms Thornton about a divorce.
[22] Julia Marafie lives in East Sussex. She has known the pursuer for 41 years. She described the pursuer as her best friend. She knew the defender but had not seen him for 25 years. She and the pursuer speak regularly by telephone and they had done so during April and May 2013. She recalled the pursuer being distraught when she received a letter from a bank about a loan with the Putney property as security. The pursuer had described the defender as being unkind and threatening to her. He had said if she did not comply he would force a sale of the property. She had been frightened and insecure. Ms Marafie had advised her to calm down and to speak to a solicitor. She had recommended Russell Cooke LLP. Later another letter had arrived from the bank saying the same thing. The pursuer had been distraught, angry and frightened. The pursuer had said she didn’t think she could go on much longer with her marriage. She could not cope with the insecurity and the financial pressure she was being put under by the defender and her son. Ms Marafie’s understanding was that the pursuer did most of the domestic chores and that that had continued. She said that she could totally understand the situation. According to the pursuer the defender had a problem with alcohol. The pursuer had wanted to keep the peace - not to goad him.
[23] In her affidavit Camilla Thornton deponed that she was a partner in the Family Law Team at Russell Cooke LLP. The pursuer had spoken to a receptionist on 9 May 2013 and had arranged for a telephone discussion with Ms Thornton to take place on 13 May 2013. Ms Thornton’s recollection was:
“We discussed a number of issues. The pursuer advised me that her husband was trying to force a sale of jointly owned property in Putney. I tendered advice to her about that. I cannot remember the exact discussions that I had with the pursuer regarding divorce proceedings. I do know however that the pursuer and I discussed the issue of divorce proceedings because I recall specifically advising her that she may not at that time have jurisdiction to raise an action in England and Wales…I suggested that she take advice from a family lawyer qualified in Scots law on the issue of divorce. The pursuer had further discussions with my colleague, Kate Hamilton, on 31st May 2013 following on from which I understand the pursuer instructed Messrs Turcan Connell …”
The defender’s case
[24] Oral evidence was led from the defender and Laith Samurai. Reliance was also placed on the affidavits from John Black, William Greig and Colin Hepburn (nos. 13, 14 and 16 of process).
[25] The defender explained that the company designed, produced and manufactured aircraft equipment. He had worked there since its formation. He had created an administrative job in the company for the pursuer in about September 1990. Their son had worked in the company for more than twenty years and was now a director: he excelled in his job.
[26] The defender spoke to working 10-12 hours a day on weekdays and about three hours each weekend day. He left for work about 6 a.m. on weekdays. The pursuer did most of the household tasks. He emptied the dishwasher and the bins and took the bins out. He did some of the shopping. The pursuer cooked meals for them. They ate together and spent time together talking and watching television. This had all continued as normal throughout 2013 and had not changed until about April 2014 when the pursuer had indicated she was no longer going to cook for him.
[27] Normally the parties had shared the same bedroom (although they had not had marital relations for many years). In March/April 2013 the defender had felt under considerable pressure because of the lack of an overdraft facility. The company provided a living for the parties, their son and about fifteen staff. It was a considerable responsibility. He had worried about it. His sleep had been disturbed. He had decided to sleep in an upstairs bedroom to avoid disturbing the pursuer. He had often done this before when he had had such difficulties. It had not been a decision to separate himself from his wife nor had it been with a view to making her feel isolated.
[28] As with most businesses, the banking crisis of 2008 had had an effect on the availability of borrowing. The company had made good profits in 2009-11 and was able to fund its activities on the strength of that for some time afterwards. Between July 2011 and June 2013 it operated without an overdraft facility. From about the end of 2012 the defender had been attempting to obtain an overdraft facility of up to £200,000 for the company. It was not possible to take on larger contracts because of the lack of an overdraft facility - overheads had to be funded while work was being done and before payment became due. The company had missed out on several such contracts. He had been eager to resolve the situation. Several financing options were explored. Banks required collateral security. The Putney property could provide that. It had been used for security purposes before. The provision of an overdraft facility from RBS had been applied for. He had tried to discuss the situation with the pursuer but it had been very difficult. She was not a good listener. She tended to raise her voice and react emotionally. Rational discussion had been difficult. This had been frustrating. He had not anticipated that RBS would write to the pursuer. He and his son had tried to persuade the pursuer that using the Putney property as security made sense but she was not prepared to have a calm discussion. He had tried to persuade her to speak to solicitors so that they could explain to her what the transaction involved. At the meeting on 26 April 2013 the pursuer had refused to focus on the matter in hand. He had become frustrated at her discussion about a picture frame and he had lifted it and thrown it into the bin. He had not thrown it deliberately against the wall. That day the pursuer had raised her voice several times in the hearing of staff. He had asked her more than once to lower her voice because staff were listening. It had been embarrassing and damaging to staff morale. In order to minimise the damage he had asked the pursuer to take paid leave. The defender had said to the pursuer that if the property was not used as security an alternative was to sell it - but that the disadvantage of that was that it was unlikely that they would be able to buy a similar property in London in the future. He had asked Stronachs to write the letter of 31 May 2013 - it had been a last ditch effort to impress upon her that the company needed finance and to get her to speak to a solicitor about it. In cross-examination it was put to the defender that he may have provided Stronachs with the usual formal proof of identification in advance of 31 May. He agreed that was possible but he could not recall when that would have been done. The letter of 18 June 2013 from Turcan Connell had been a shock to him. Divorce had never been alluded to by either of them before that letter. It was the last thing he wanted. He told the pursuer that. He had always loved her and he always would. He told her to forget about the proposals to obtain finance for the company - that he no longer wanted any such financial assistance from her. The company would manage without it. He thought that since he no longer sought it the pursuer would not persist in seeking a divorce. He had received another letter from Turcan Connell in July 2013. He had hoped the pursuer would change her mind. The next reference to divorce had been service of the summons.
[29] The defender described himself as an affectionate person - more overtly so than the pursuer. He was a pacifist. He was no “doormat”, but the suggestion that anyone, least of all the pursuer, would find him aggressive or threatening was ludicrous. Had it been so the pursuer could have gone to live in Putney or in Alva (where her parents lived and where she owned a house), but she had not. Indeed the pursuer was the one who tended to shout, bang doors, and be verbally abusive towards him. The pursuer was “a very capable person with a really loud voice”. She was not someone who would be “controlled” by anyone.
[30] The suggestion that he drank to excess was untrue. He drank wine with meals, generally about two glasses. He abstained every ten days. He had a wine box at work which contained the equivalent of about three bottles. It usually lasted just over a week. He bought wine with a low alcohol content. There was a wine box in the fridge at home which both he and the pursuer drank from. On one very stressful day at work in 2009 he had taken a drink in the early morning - but that had been an exception. Part-time staff had been “blackmailing” him for more money - he had told them to leave. At the same time the pursuer had said she was going to Spain.
[31] After the meeting of 26 April 2013 home life for the parties had continued very much as before. The defender had continued to be affectionate towards the pursuer. He had continued to bring her flowers. The pursuer had become interested in preparing delicacies such as hummus, bread rolls and biscuits for them, and had told him to take some of them to work. They had continued to eat together and spend time together. The pursuer would rest her head against his thigh while they watched television. He had been wholly unaware of her contacting solicitors.
[32] Laith Samurai lives in Bridge of Don with his wife and family. He had moved out of the parental home in 1993. He had first worked for the company as an undergraduate student. Later he began work as a development engineer. He progressed to being a design engineer, and then to being systems director. He described the defender as having a very patient and measured temperament. The defender was neither aggressive nor volatile. He rarely raised his voice. He cared very deeply for the pursuer. On the other hand the pursuer lost her temper very easily. He loved his mother very much, but she overreacted to situations. Among the people who loved her she tended to be very assertive and domineering towards the people who loved her. She usually got her own way.
[33] Mr Samurai spoke to there being several discussions in April 2013 about finance for the company. He recalled the meeting when the photo frame had been thrown. His recollection was that that was a few days before the meeting on the 26 April. The defender had been struggling to get the pursuer to engage in the discussion about finance. She had started to reposition a photo frame. The defender had become tired of this and had thrown it in the bin. The pursuer had stood up “very confidently and almost triumphantly” and said “Well I am feeling intimidated”. Mr Samurai’s impression was that she had not been intimidated. During the discussions on 26 April the pursuer had lost her temper and had become louder and louder. She had acted “disproportionately” in the hearing of staff. After that day she had continued to come into work until 20 May.
[34] Mr Samurai indicated that if he had thought his mother was being intimidated or threatened by the defender he would have done something about it. He did recollect her voicing concerns to him about the defender’s drinking. He recalled a heated discussion between the parties in April/May 2013 about the Putney flat. During it the defender had said “I love you” to the pursuer. The pursuer had replied “You are drunk”. There was “no way” that the defender had been drunk. Mr Samurai had never seen the defender drink to excess nor had he ever seen him impaired as a result of alcohol.
[35] Mr Samurai had not paid for the shares which had been transferred to him. He regarded the share ownership as a responsibility. He was the curator of the family business. The share transfer had had no effect on his evidence.
[36] Mr Black is a partner with Anderson Anderson Brown, Accountants. He had dealt with the affairs of the company since 2009 (when he had taken over from a partner who had formerly done so). His affidavit stated:
“…3. From the point I took over from Bobby Anderson as the client contact, I have met with Faris on a number of occasions, at least twice per annum. On more than one occasion Faris said to me that he was managing his son, Laith Samurai’s inheritance and it was clear from our discussions that his intention was that Laith would take over the running of the company in due course. Laith has been involved to a great extent in the company already and he is the engineering brains behind a lot of what they do.
4. I was contacted by David Laing of Ledingham Chalmers LLP … on 29 April 2013 to advise that Faris had decided to transfer his shares to Laith….I was not surprised at this decision given my previous discussions with Faris about Laith taking over the company…”
[37] Mr Greig has worked with the company since 1987. He is production controller. In his affidavit he stated:
“…4. I would describe Faris and Lynn’s working relationship as ok. They appeared to be fairly amicable towards each other most of the time… Laterally (sic) towards the time when Lynn went on leave I observed Faris and Lynn arguing more often at work. I heard both of them shouting on occasions. I never witnessed either of them behaving violently or aggressively to (sic) the other. I am unsure what they were arguing about but I think it was to do with the business. Everybody could hear them arguing as it is a small office…
8. Faris is a very placid person. He is very mild mannered and generally not argumentative. He never raises his voice to people. I have seen Lynn raise her voice to people. She can get quite het up about things. She has a strong personality and is single minded…”
[38] Mr Hepburn has worked for the company since 1987. In his affidavit he described the pursuer as “a controlling character” (para. 3) and “a bit of a controlling person” (para. 4).
“6. … It was fairly common to hear Lynn speaking with a raised voice. I never hear Faris shout. He is not one to shout. He can get frustrated with people and may speak loudly but he would never shout…
7. I have never witnessed Faris behaving in an aggressive way towards Lynn or anyone…
11. … I am aware that around the last time she was at work she and her son Laith had an argument. I think it was something to do with records which were meant to have been kept but which were deleted. I remember hearing lots of raised voices, however…
14. I would describe Lynn as hot and cold. One day she is nice and the next day you are unsure how to take her. However she is a very kind and nice person. She would do anything to help you out if you needed it. Faris is the same about being kind etc.”
The pursuer’s submissions
[39] Miss Ennis referred the Court to s. 10(3) and s. 27(2) of the 1985 Act, and to the discussion in Clive, The Law of Husband and Wife in Scotland (4th ed.), paras 21-075 to 21-081. She submitted that I should follow the approach of the Lord Ordinary in Banks v Banks 2005 FamLR 116 at para 33:
“The task of the Court is to determine when the parties ceased to cohabit, having regard to the statutory provision that cohabitation occurs only when parties are ‘in fact living together as husband (sic) and wife’. That is, as the provision states, a matter of fact. The ultimate determination of the issue must depend upon the particular circumstances of a given case. As a generality, the Court must look at the issue objectively; no doubt taking into account the illustrative factors mentioned by Professor Clive. There may of course be many others which emerge as relevant. The intention of the parties cannot be determinative of the issue. In that sense there is no absolute requirement for one of the parties to have decided that the marriage or relationship has run its course or that such a decision should have been communicated by one party to the other. However, the intention of the parties and any communication of them to each other may be relevant factors in the equation.”
Reference was also made to Bain v Bain 2008 FamLR 81 at para 10.
[40] Miss Ennis suggested that the pursuer was a credible witness, even if there were respects in which her evidence was not reliable. The evidence of Ms Marafie should also be accepted, as should the affidavit evidence of Ms Thornton. On the other hand, where the defender’s evidence differed from the pursuer’s it should be rejected as incredible or unreliable. The same applied to their son’s evidence. The defender had been stubborn and belligerent in cross-examination. He had raised his voice and shown his true nature. Laith Samurai’s evidence should be treated with caution in view of the manner in which it was given and the obvious mutual interest which he and the defender had had at all material times in the company. Little weight should be attached to the affidavits founded upon by the defender. To a large extent they dealt with peripheral matters. In any case the evidence in them had not been tested by cross-examination; Mr Greig and Mr Hepburn were employees of the defender with a clear interest to support him; and they only saw the parties at the workplace.
[41] In April and May 2013 the pursuer was placed under considerable pressure by the defender and their son to assume financial obligations that she did not wish to assume. If her account of events were accepted the defender’s behaviour was intimidating. Even if it was not wholly accepted, the throwing of the picture frame was intimidating even if it had been thrown into a bin rather than against a wall.
[42] The relative lack of change in the domestic situation before and after 13 May had to be considered in context - the pursuer was being bullied and intimidated and was simply seeking to keep the peace. In any event there had been some significant change - the defender had moved bedroom. The position at work had changed too - the pursuer had been requested to take paid leave and had done so two or three weeks after the request. By 13 May when she spoke to Ms Thornton the pursuer had decided the marriage was over. She could no longer trust the defender. At that date the marriage was also over in the defender’s mind. His initial contact with Stronachs must have been at about that time. He had moved to the spare room. He had asked the pursuer to take paid leave. On an objective view of the facts they were not living together as husband and wife from 13 May. If the relevant date was not 13 May it was 19 June. Once the defender had received the letter from Turcan Connell there could be no doubt in his mind as to the basis upon which the pursuer was continuing to live under the same roof as him.
The defender’s submissions
[43] Miss Malcolm did not take issue with Miss Ennis’ submissions as to the relevant law. In addition to the authorities already discussed she made reference to Brown v Brown 1998 FamLR 81, paras 81-05 and 81-06.
[44] The court ought to find the defender and Laith Samurai to be credible and reliable. Support for the defender’s account was provided by Mr Samurai. It was also supported in a number of respects by the affidavits from Mr Greig and Mr Hepburn. The pursuer’s agents had been given an opportunity to request that those witnesses give oral evidence. In those circumstances it would not be fair to attribute little weight to their evidence on the basis that it was untested by cross-examination. Where the pursuer’s evidence was at odds with the evidence of the defender or their son it should not be accepted. The fact that the pursuer had changed her position in the pleadings as to the relevant date was also a significant factor when considering her credibility and reliability.
[45] The defender’s move to the spare room had not had the significance which the pursuer now sought to attach to it. Raising finance for the company, and in particular the use of the Putney property as security, had been a major source of disagreement and friction between the parties, but they had carried on living together as man and wife nonetheless, just as they had before. As at 13 May the defender had had no inkling that the pursuer was considering divorce. As far as he was concerned the disagreement then was simply about the Putney property. They were still living together as man and wife on the date of service of the summons, albeit the defender had become aware on receipt of the letter of 18 June 2013 of the pursuer’s wish to separate and become divorced. In the whole circumstances the relevant date was the date of service of the summons.
Discussion and decision
[46] The court’s task is to determine as a matter of fact whether the parties had ceased living together as man and wife before the date of service of the summons. The pursuer contends that that occurred on 13 May 2013, failing which 19 June 2013.
[47] It seems clear that during April and May 2013 the defender persisted in seeking to persuade the pursuer to grant a security over the Putney property, or to agree to sell it, when she was making it perfectly clear that she did not wish to do either. That undoubtedly placed pressure on her. I accept the evidence of the pursuer and Ms Marafie to that effect. I accept that that pressure caused her anxiety and distress. However, I do not accept that she lived in fear of the defender or that he was threatening towards her. On any view, the photo frame incident was a show of temper and frustration on the defender’s part (whether it was thrown at the wall or the bin): but, I am not persuaded on the evidence that such behaviour was typical of the defender’s temperament, or that there were any other comparable incidents at work or at home. I am not satisfied that he was belligerent. His responses during cross -examination did not persuade me otherwise. He became animated at points, mainly when it was being suggested that the company had been in financial difficulties. He stressed that that was not so: that it had needed an overdraft facility to enable it to take on bigger contracts, but it had not been in financial difficulty; and that suggesting financial difficulty could be damaging to the company. The pursuer did not appear to me to be someone who would be intimidated easily. On the contrary, she struck me as being both independently-minded and strong-willed. Her initial refusal to comply with the request to take paid leave is one example of that. I had little doubt on the evidence as a whole that she was capable of standing up for herself and looking after her own interests.
[48] I accept the defender’s account of the circumstances in which he moved into the spare bedroom. He had moved rooms several times in the past. My strong impression was that the pursuer was now seeking to attach far more significance to the move than it had in fact had at the time. The same observation applies to her paid leave. In this regard I consider her change of position in the pleadings to be of some significance. I also accept the defender’s evidence that there was no mention by either party to the other of divorce until the letter of 18 June 2013, and that the letter came as a shock to him. I am also satisfied that at no time prior to that date did the pursuer ask the defender to move out.
[49] It is clear that Laith Samurai took the defender’s side in relation to the dispute about the Putney property. His manner in the witness box appeared a little over-confident. He appeared unsympathetic to the pursuer’s concerns about what was being proposed (concerns which in my opinion were readily understandable). He had an obvious interest in the company’s prosperity. Nonetheless, his evidence as to the respective temperaments of the pursuer and the defender was not squarely challenged in cross-examination; and there was some support for it in the affidavits of Mr Hepburn and Mr Greig. (I bear in mind that Mr Hepburn and Mr Greig are employees of the defenders and that their evidence has not been tested by cross‑examination. Nevertheless, I think it would be wrong in the circumstances to have no regard at all to it). In assessing Laith Samurai’s evidence I also take account of the fact that he readily confirmed that the pursuer had expressed concern to him about the defender’s drinking (albeit he did not share that concern).
[50] The dispute about securing finance for the company using the Putney property has undoubtedly been a major factor in the breakdown of the parties’ relationship. The events of 26 April 2013 were a milestone on that journey, but in my opinion the relationship was far from over at that date. During the period between that date and service of the summons the parties lived their lives together in largely the same way they had done previously. They ate together and spent time together. The household continued to be run as before with each party making their usual contributions. The defender continued to demonstrate affection towards the pursuer.
[51] I accept that when the pursuer spoke to Ms Thornton on 13 May 2013 she was contemplating divorce. I am wholly unconvinced that at that point the defender had any notion that the marriage was over or that divorce was in prospect. Whether or not he had made the initial contact with Stronachs by that date (and on the evidence it was not established that he had), his dealings with Stronachs and the letter sent on his instructions provide no indication of any belief on his part that the marriage had broken down. Rather, resolving the company’s overdraft problem remained his consuming concern at that stage. Nor in my view do any of the other factors suggested by the pursuer point to the defender thinking that the marriage was at an end at that time. (For the avoidance of doubt I stress that it was not suggested (nor was it put to the defender) that the decision to transfer the shares, or their transfer, were in any way indicative of concern on the defender’s part as to the state of his marriage at the time of that decision or transfer).
[52] In the whole circumstances I conclude that the parties were still cohabiting as man and wife on 13 May 2013.
[53] The position was different when the defender received the Turcan Connell letter of 18 June 2013. The letter was a declaration by the pursuer to the defender that she had resolved upon divorce proceedings. While the letter came as a shock to the defender, from that time he knew the pursuer’s intentions and he knew she considered that they remained under one roof as separated persons. From that point, viewing matters in the round, they were no longer living together as man and wife. Accordingly, in my opinion “the relevant date” in terms of s. 10(3) of the 1985 Act is 19 June 2013.
Disposal
[54] By interlocutor dated 8 May 2014 the court found and declared that the relevant date is 19 June 2013.