Scottish Court of Session Decisions

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URL: http://www.bailii.org/scot/cases/ScotCS/2020/2020_CSOH_76.html
Cite as: 2020 GWD 24-324, [2020] ScotCS CSOH_76, [2020] CSOH 76, 2020 Fam LR 126

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OUTER HOUSE, COURT OF SESSION

[2020] CSOH 76

F62/19

NOTE BY LADY WISE

In the cause

against

AAW

Pursuer

Defender

8 July 2020

Pursuer: Mr McAlpine; Morton Fraser

Defender: Mr Hayhow; Beveridge Kellas

[1] The parties married on 17 January 2011 in Dubai where they continue to reside. YI is

Russian and AAW is a domiciled Scot, who has lived abroad for many years in connection

with his employment. This court has jurisdiction to determine the matter of the parties’

divorce by virtue of the defender’s Scottish domicile, the proceedings not being covered by

EU Council Regulation 2201/2003. YI wishes to be divorced in Scotland and AAW would

prefer to be divorced in the courts of Dubai, United Arab Emirates, where he has raised

proceedings. I allowed a proof on the merits of the divorce (irretrievable breakdown of

marriage on the basis of alleged unreasonable behaviour on the part of the defender) and on

the relevant date, the date of the parties’ separation, which was contentious until close to

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proof, a matter of some significance as I will later explain. The relevant date was agreed as

5 September 2018 by way of Supplementary Joint Minute of Admissions tendered at the

proof, which proceeded remotely using video conferencing facilities due to the ongoing

Covid-19 emergency.

[2] Six witnesses had sworn affidavits to be taken as their examination in chief at proof,

three for each side, although Counsel for the pursuer declined the opportunity to cross

examine of one of the defender’s witnesses (Mr KA) and the defender then rested on the

affidavit of that witness.

Undisputed Facts

[3] YI is 45 years old and is a qualified medical doctor and pathologist in Russia. She

and the defender met on an internet dating site. They met in Dubai and later holidayed in

Prague, at New Year 2011. They married very quickly thereafter. AAW is 65 years old and

has been married previously. He has adult children of that marriage including a 26 year old

son AW, who lives and works in Germany and who gave evidence in his father’s case. AW

has a good relationship with his half-brother JW and he stayed at the parties’ home each

year during the marriage. He stayed with the pursuer and JW at the former matrimonial

home in November 2018 after the parties had separated.

[4] In 2019 the defender raised divorce proceedings in Inverness sheriff court in which it

was averred that the parties’ marriage had broken down irretrievably as established by their

non-cohabitation as husband and wife for a period in excess of two years. It was averred

that they had not had marital relations since the birth of JW in September 2012. The

defender did not live within the sheriffdom and Inverness sheriff court did not have

jurisdiction to entertain the case. The pursuer then raised these proceedings and the sheriff

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court proceedings were dismissed. The defender raised divorce proceedings in Dubai,

which are ongoing.

[5] YI has not undertaken any remunerative employment since the parties married. On

22 September 2012 she gave birth to the parties’ son, JW, who is now aged 7. She has always

been JW’s primary carer. The child has continued to live with her after the parties’

separation and has contact with the defender, who lives in separate rented accommodation

once per week. YI is a loving parent to JW and cares for him physically and emotionally.

The former matrimonial home in which she and JW live is a two storey villa with a

swimming pool, owned by the company of which the defender is CEO. JW attends an

English speaking school in Dubai. The present arrangements for his care are eminently

satisfactory.

[6] Both parties agreed in evidence that they have not lived together as husband and

wife since 5 September 2018, that their marriage has broken down irretrievably and that

there is no prospect of reconciliation.

Disputed evidence

[7] The disputed evidence concerned the relationship between the parties during the

marriage and the reason for their ultimate separation. There were a series of allegations and

counter allegations, although it is primarily the defender’s behaviour that is relevant to the

question of whether he has behaved in such a way that the pursuer can no longer reasonably

be expected to reside with him.

[8] The pursuer adopted her two affidavits as a truthful account. Her complaints about

the defender’s behaviour fell into four categories. These were; 1) her husband’s controlling

and domineering behaviour towards her and the undermining of her confidence, 2) his

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speaking derogatorily to her including in a sexually inappropriate manner, 3) his sexual

conduct towards her generally and 4) his behaviour towards the end of the marriage when

he started being absent from home and the pursuer said she discovered condoms and email

pictures of young women in his car and on an electronic device respectively. All of these

were expanded on in her supplementary affidavit and she was cross examined on each.

[9] YI had described an incident early in the marriage when she and her husband had a

row about the defender’s son AW’s behaviour. She said the defender told her to “shut up”

and called her a “stupid bitch”. In cross-examination she was pressed about the

circumstances of AW’s behaviour and challenged about a passage in her affidavit stating

that she had no conflicts with AW. YI explained that she had not complained to AW about

his behaviour, she had complained direct to her husband. She agreed that she had lost her

temper but it was due to AW’s behaviour and her husband’s dismissive response to her

complaint. There had been one occasion when she had shouted at AW when he was with

her son and JW’s leg became stuck in a piece of furniture. In a panic she thought that AW

was responsible and she thought JW had broken his leg. She agreed she had what could be

described as a tantrum on that occasion. When pressed further on the 2011 incident and

what had caused it, the pursuer explained that she and her husband had come home from a

trip away to find condoms, dirty towels and other signs of AW having had women in the

house. He had been only 16 years old. The pursuer thought his father had organised or

encouraged the use of prostitutes. It was in that context that she confronted the defender

and he said “It’s none of your business you stupid bitch”. She said that in addition to

speaking to her regularly in a derogatory manner he would make unpleasant and

unfounded remarks about her family. He did not let her return to Russia with JW to see her

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mother who has since died. He made wholly inappropriate and rude sexual jokes about her

consorting with Pakistani taxi drivers, which she found upsetting and offensive.

[10] YI complained that her husband did not encourage her to try to work as a doctor in

Dubai, although she accepted that he had organised the translation of some of her

qualifications. She had not seen a document no 7/15 of process, which appeared to be part

of an application for recognition of qualifications, only one of seven pages had been

produced. She agreed that the handwriting on the document was that of her husband. She

did not dispute that he had helped her initially when she was exploring whether she could

work in Dubai but she did not regard it as encouragement. She would have had to spend

two years abroad to be able to qualify to work as a doctor in Dubai and her husband said

that it was fine if she became a housewife instead. She had found it scary to risk leaving her

job and family in Russia but the defender had assured her that it would be fine. She

disputed that her motivation in marrying the defender was to have a child, be kept in good

style and get out of Siberia although she agreed that she had wanted to have a child.

[11] On sexual matters, it was suggested to the pursuer that she would not have

discussed the details of her private sexual life with family and friends but she said that,

while some details were too horrible to share, her family and close friends did know what

was happening. She said the parties’ sex life was fine until she was pregnant with JW. Then

the defender put emotional pressure on her to have sex far more than she would have

wanted and sometimes in inappropriate situations. He demanded sex every day, sometimes

three times per day. He would grab her sexually even while she was breastfeeding her son.

Usually she felt she had no choice and could not refuse and rejected his advances only a few

times. When she said with some emotion in evidence that her husband wanted

“ … constantly sex sex sex, when I was breastfeeding all he wanted was sex – I couldn’t

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even take a shower”, counsel for the defender suggested to her that she was the one who

was obsessed with sex and had an unhealthy interest in it. She retorted that it was her

husband who was so obsessed. The line that it was the pursuer who was obsessed with sex

was persisted in and YI reiterated that it was her husband who had effectively forced her to

have sex every day. In 2017 the defender sent her an article about the menopause and HRT

(produced at 6/12 of process) and told her this might increase her desire for sex. When she

refused sex he became angry and would blame her constantly, saying she didn’t love him,

and was neglecting him. Sometimes he said it was her duty and that she had to do it

because he suffered without sex. He would descend into a bad mood if she refused and

would insist on sex even if she was tired or busy with JW. She felt she had no choice but to

give into his demands and described it as “too unbearable”.

[12] The final months of the marriage were characterised by the defender being away at

weekends, claiming that he was working; something the pursuer said he never did more

than twice a year previously. He also started spending too much time on his mobile phone

and computer. In July 2018, she was with JW who when playing with her husband’s

computer accidentally opened his emails. There the pursuer saw emails and pictures on his

computer or iPad (she said it was a small tablet) from young women who looked about

25 years old. Then she found condoms in her husband’s briefcase in his car. She thought

that the young women were prostitutes and assumed that although he wouldn’t use

condoms with her he would if with a prostitute.

[13] YI said that she became depressed as a result of her husband’s behaviour and

stopped menstruating due to stress when she was 42 years old, but didn’t seek help from a

psychologist until after September 2018. She disputed that she simply had an early

menopause. In recent months her husband had brought her vodka, which she doesn’t drink

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when he came to collect JW. She was concerned that he was trying to entrap her into doing

something that could be reported to the authorities because he had previously said to her

that he will keep her out of the country. She has no right to reside in UAE other than as his

wife and she was afraid that the defender’s actions could result in her losing her visa, her

child and “everything”. She denied that she had lost objectivity by describing her life as “a

sort of slavery”. When living with the defender she had no money and could not live

independently, she had to explain whenever she spent money and she had to have sex every

day and cook for the family and look after her son and husband. She had stayed in the

marriage only for the sake of her son. The defender would say that if she disagreed with

him he would kick her out and she would have to go to Russia and he would have JW.

[14] When it was suggested that she did not communicate with her sister, EI, during the

marriage, the pursuer stated that she did but did not disclose to her husband that she was in

regular contact with her sister because of the unpleasant remarks he made about her family.

There was a considerable amount of evidence about the pursuer’s love of cats and about the

extent to which she had permitted cats into the matrimonial home despite her husband

having a cat allergy. This chapter was of limited assistance to my determination of whether

the defender had behaved unreasonably. In short the pursuer’s position was that since

about 2015 the cats were allowed to sleep in the utility room of the house at night but that

she tried to keep them out of the house during the day. She didn’t think her husband’s

symptoms were too serious when he suffered from his allergy but his eyes would be

irritated and he would sneeze. Regardless of whether there were animals around she had

noticed that he was sometimes short of breath. He didn’t like her having cats but he

reluctantly agreed to it. JW loved the cats. She denied that her refusal to rid the house of

cats, her withdrawal of affection and her temper tantrums had caused the breakdown of the

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marriage. The marriage broke down when she confronted her husband about the emails on

his electronic device and he walked out. He found his current accommodation and moved

to it on 5 September 2018.

[15] NM is a 37 year old Russian women living in UAE. She has been a friend of the

pursuer since 2011 when YI and her husband frequented the yacht club in Dubai where NM

was working. She had remained a close friend of the pursuer throughout the time the

parties were together, although she has worked away from Dubai for certain periods. In her

affidavit evidence she stated that when the parties were together the pursuer would confide

in her about her married life with the defender. She went on “AAW is a difficult character. I

mean he was not easy to live with”. NM understood that however much the pursuer did for

the defender and her son the defender would criticise her. The pursuer confided that her

husband regarded only his opinion as the right one and that her own views and wishes were

never considered in making family decisions. YI told her of the rude and inappropriate

jokes the defender made about sexual matters. As early as the end of October 2012, the

pursuer had confided in her about the defender’s demands for daily sex, telling her that she

should put the child down to sleep and have sex with him whether she was tired or not.

Over time, NM observed her friend’s distress. She said “I know she was very upset

emotionally about what was happening in her marriage. She was suffering. It was clear

something was wrong. She was very lonely”. NM was aware that the defender would not

give his wife permission to visit Russia with their son or to obtain a Russian passport for JW.

The defender was always very welcoming to her when she visited the matrimonial home

and the issues the pursuer told her about were never discussed in his presence.

[16] Under cross examination NM agreed that she knew that the defender had assisted

with the translation for some of the pursuer’s qualifications with a view to her working in

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Dubai. NM had a contact with a local GP and suggested to the pursuer that she send her CV

to that practice but the pursuer did not do that. When they later discussed it, the pursuer

said that the job would be ten hours daily and that AAW had insisted that she be at home.

She did think, however, that the pursuer also wanted to stay at home after she had JW.

When asked about whether Russian women would discuss intimate matters with friends,

NM said they would not if they were happy but they would if unhappy. The pursuer had

opened up to her from the time they became close, 2012 onwards. There had been periods

when she and the pursuer could not have such regular contact because of NM’s working

hours but they were always in touch and spoke on the phone if they couldn’t see each other.

[17] It was specifically put to NM that nothing she saw at the parties’ home made her

think it was impossible for her friend to live with the defender and she said “She lived many

years with him. He was tough - he do what he likes. She already lived too many years with

him - I expected it to continue”. She knew her friend well and her impression was that she

never complained to her husband, despite her unhappiness. NM didn’t seem to think her

friend had allowed cats to sleep in the parties’ villa and had seen her throwing them out if

they got into the house through an open door during the day. The pursuer had told her that

the defender had an allergy and so the cats couldn’t stay. NM had last visited the parties as

a couple in 2018. When she visited the pursuer the following year there were cats in the

house.

[18] In July 2018 the pursuer said to NM “He has gone elsewhere” and told her about

finding condoms in his bag. NM knew that the defender would go to the yacht and

sometimes to Saudi (Arabia) at weekends and the pursuer did not know what he did there.

In August 2018 the pursuer told her about finding the emails on the defender’s iPad when

JW had been playing with it and that she had seen pictures of “very bad women”. She could

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not be certain whether she was told these were on an iPad or a computer/laptop, she just

knew she had been told they were seen on a device. While she was not present when her

friend discovered these, NM recalled that the pursuer was very upset at the time and “felt

disgusting”. NM asked her how she could continue a sexual relationship with the defender

in these circumstances and the pursuer said that she could not. The pursuer told NM that

she had confronted the defender about what she had discovered and that the defender was

angry.

[19] EI, the pursuer’s sister, lives in Spain. She is ten years older than the pursuer, but

they have always been close. She speaks reasonably good English but her affidavit was also

translated into Russian for her to check. During the marriage they did not speak quite as

much as they had previously. The pursuer told her sister that her husband was jealous and

controlling. She complained to her sister early in the marriage, before JW was born, that

they had gone to visit Scotland and that it was a hard time, she was cooking and cleaning

every day for guests and she didn’t even have time to go outside. She called her sister and

cried. The pursuer also confided in her sister about the defender’s demands for sex at

inappropriate times.

[20] Under cross examination EI agreed that she had no contact with the defender after

meeting him at New Year 2011 in Prague. She had not liked his behaviour on that occasion.

During the marriage she and her sister would send messages to each other and YI would

telephone her once her husband had left the house for work. She would do so about once a

month, sometimes several times a month. WhatsApp videos are forbidden in UAE and so

they only managed face to face conversations two or three times. She agreed that the

defender usually wouldn’t know she and her sister were in touch, but she recalled that on

one occasion the pursuer had telephoned her when her husband was at home and he had

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been angry. In the English version of her affidavit EI had said her sister described her

husband as “evil and arrogant”. She was asked to say those words in Russian for the

interpreter to translate and the correct English translation was “arrogant and mean”. EI was

specifically asked when her sister had told her all these things about the defender and she

confirmed that it was mostly during the three years leading up to September 2018. During

that time she understood that the defender was angrier and the relationship was even more

difficult, something she thought she had been told in 2017.

[21] EI was a little sceptical of the defender’s complaints about the cats. She herself has a

cat allergy and she said she knew the pursuer had cats from about 2013 and there had been

no mention of the defender’s allergy, something she had only heard about recently. She

thought that someone with a serious cat allergy would not have been able to have cats

around the house for that length of time.

[22] In his evidence, the defender disputed that he and his wife had arrived home after a

weekend when his son AW was in their home to find used condoms, dirty towels and other

signs of sexual activity. He agreed there had been a row with his wife in 2011 but said it was

because she had been smoking next to the garbage chute and a neighbour had complained.

When confronted the pursuer had a tantrum and threw a lamp. He couldn’t calm her down

and so went to spend the night elsewhere. He understood that the police had attended the

house, but that was after he had left.

[23] Under cross-examination, the defender accepted that he had changed his position on

the date on which the parties had separated. When asked why he did not just consent to

divorce on the basis that he and his wife had lived separately since September 2018 and both

sought divorce, he first said that it was on the advice of his legal team. Later in his evidence

he said it was because he wanted to defend the allegations made against him by his wife

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which he regarded as unfounded and against his character. Then he said he only found out

a week before the proof that he could consent to divorce and avoid the need for contested

witness evidence. When it was put to him that he sought to divorce in Dubai because it

would be to his financial advantage at first he said “no, - I hadn’t thought about that

actually”. He said he had been happy in 2019 to be divorced in Scotland because he thought

it would be straightforward and that in Dubai he would have to maintain his wife for three

years. Then he said “OK so maybe there is some financial advantage but that’s not the main

reason”. The initial writ in the Inverness action (no 6/3 of process) was put to the defender

and it was suggested that the averment there that he and his wife had agreed care

arrangements for JW (prior to that action) was untrue, to which the defender responded

“well I haven’t signed it, have I?”.

[24] The defender disputed that his wife had wanted to work and that he told her she

didn’t need to, although he accepted that her Russian qualifications did not permit her to

work in Dubai. He agreed that he had been in control of the finances and his wife’s

residential status in Dubai but denied emphasising to her that she had no money and no job

in a domineering way. The defender denied all of the pursuer’s allegations about his

derogatory and inappropriate language and his accusations, in jest or otherwise, that she

had consorted with Pakistani taxi drivers. He denied criticising her work within the home

or her physical appearance. When it was put to him that he had described himself as his

wife’s “friendly rapist” he said that was not a term he would use. He then accepted that he

had used that term in an email to his wife (no 6/12 of process) but said it was “part of

friendly banter” and alleged that it was his wife who had instigated the term “rapist”

herself. AAW disputed that he had wanted sex daily or more than once per day. He denied

that he would find it difficult to accept his wife’s refusal to have sex, or that he would sulk

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and become difficult if she refused. All of the sexual allegations were denied, although the

defender accepted he had sent his wife an article about the menopause in 2017.

[25] When it was put to him that he and his wife were still having sexual relations in 2017

the defender answered “intermittently”. He said that marital relations had been intermittent

from 2014 and that he couldn’t recollect whether or not they last had sex in April 2018,

which was the pursuer’s position. He accepted that it would be false to say there had been

no sexual relationship since JW was born and that it was not correct to say sexual relations

had ceased in 2014, two years after JW was born. He accepted he had sworn an affidavit

stating there had been no sex after that but said that what he meant was that it had been

“more intermittent”. He said he had no idea how it came about that the pleadings in these

proceedings had stated a position on his behalf that he and his wife had ceased having a

sexual relationship in 2012 and that he had no explanation to offer. Neither did he recollect

stating that position for the purpose of the Inverness action.

[26] The defender agreed that JW had not slept well as a baby but said that his wife

“made a rod for her own back – she didn’t train the child” and would feed him when he

woke. He agreed that he kept JW’s passport and when asked if that was a feature of him

being in control he said “I don’t trust her”. He said that he would “absolutely not” let his

wife have a Russian passport for JW and when asked why he should make the decision

about JW’s passport his first reaction was “Why not?” Subsequently, in answer to a

question from me he said he thought it might not be possible for JW to have dual

nationality, perhaps as a matter of Russian law. In re-examination he changed that to

suggesting that it was prohibited by the law of one of the two countries, the UK or Russia.

There was no reliable evidence at all about any impediment to dual nationality for JW.

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[27] On the final breakdown of the relationship, the defender denied that his wife had

found pictures and messages from other women and/or condoms and that they had argued

as a result. His position was that he had challenged his wife about the cats on a number of

occasions but that she continued to let them in the house. His wife’s relationship with his

son AW had been “barely polite” and he knew she had lashed out at his son after the

incident when JW had an accident in the house. He thought that AW had stayed in the

matrimonial home in November 2018 only because he was so close to JW. On why his wife

would tell her sister and her friend NM about his behaviour during the marriage as it was

happening, the defender said at first that his wife had told those witnesses those things after

divorce proceedings were raised. Then he said they were lying if they said they had been

told such things earlier than that.

[28] In re-examination the defender was asked what the cause of the final argument was

that had made him leave the house and he said he couldn’t remember, but that his wife had

been shouting and screaming, mostly in Russian. He said that he would be very concerned

about JW going to Russia because it was a tough country and it would be very difficult for

him to maintain a relationship with his son. Then he said “It’s not going to happen because

I will keep his passport”.

[29] The defender’s son, AW gave evidence in his father’s case. He is 26 years old and

had sworn an affidavit which he adopted as his evidence in chief. He disputed that his

father had paid for or encouraged him to use prostitutes and said he didn’t recall an

occasion when his father and step mother came back to the house and found signs of him

having done so. His position generally was that the pursuer had been somewhat cold and

distant to him, other than an incident in 2014 when he had accidentally caught JW’s leg in a

piece of furniture when she came and lost her temper at him. He said she spat at him and

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kicked him. Thereafter he thought that her behaviour could be unpredictable and his father

confirmed that to him. He thought that the marriage was unhappy and that in early 2018

when he visited he noticed they were barely speaking. YI would sometimes speak in

Russian.

[30] Under cross-examination, the witness was asked why he had referred in his affidavit

to the pursuer’s friend NM. He said that he knew who the other witnesses were from his

father’s solicitor and had been answering a question about who the parties socialised with

and he recalled a friend called NM. He said that from what he could see the pursuer and

NM were not close and the pursuer would make fun of NM when she was not there. He

agreed that the pursuer would cook for the family when he was there and agreed that he

could not know what the sleeping arrangements were when he was not there but saw the

pursuer sleep in a room with JW when he was visiting. He agreed that he had continued to

visit after the pursuer had lost her temper with him in 2014, but said that it was his father

who made him feel welcome and not the pursuer. He clarified that it was when he visited in

November 2018 that he saw the cats roaming free in the house. In the three years or so

before that, there were fewer cats but he had seen them in the house.

[31] A colleague of the defender, Mr KA, gave unchallenged affidavit evidence that from

about 2013 he had the impression that the parties’ marriage was unhappy. His contact from

that time was with the defender only. AAW would complain to him from time to time that

he and his wife argued and were unhappy. He mentioned the cat issue on several occasions.

In September 2018 the defender told him that he was moving out of the house and was

going to rent an apartment. The reasons he gave Mr KA were the cats and YI’s behaviour.

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Discussion

[32] The parties gave very different accounts of their marriage and the reasons for its

breakdown, requiring an assessment of the credibility and reliability of each witness. As

with most relationship disputes, only the parties to it really know what went on between

them at home and so they are the two witnesses whose evidence requires the most careful

scrutiny.

[33] Dealing first with the pursuer, I found her to be a generally credible witness. Her

position about the timing and circumstances of the marriage breakdown has been consistent.

There were one or two adminicles of contemporaneous material that supported her position.

For example, she had lodged a copy of the email sent to her by the defender in November

2014 in which he referred to himself as her friendly rapist, a term he said he would not use

until reminded that there was such an email. There was also the email about the menopause

when the defender sent to his wife in 2017, consistent with her account about him

complaining about the changes that were taking place in her. While she was not cross

examined on some of the specific sexual allegations she made, the line that seemed to be

taken with her was that she was the one obsessed by sexual matters, not her husband, and

that she was a fantasist, but this was not a view advanced by AAW in evidence at all, a point

to which I will return. The parties’ sexual relationship was an important aspect of the case

because their accounts diverged so much. I have no hesitation in relying on the pursuer’s

account of that chapter which was detailed and consistent on what was clearly an emotive

subject for her. It was a subject about which she had confided in her close friend NM and

her sister EI during the marriage.

[34] On one or two specific matters I find the pursuer’s account less reliable than that of

other witnesses. In relation to the cats, for example, I conclude that she understated the

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extent to which the cats were in the house and the impact that had on her husband who was

allergic to them. The defender’s son’s evidence suggested a larger number of cats were in

the house after separation but there is little doubt that their presence was a problem before

that. As already indicated, the cats issue is not material to the question of the defender’s

behaviour. I accept the pursuer’s account that the final argument in August was about what

she had seen on her husband’s electronic device coupled with his absences from home at

weekends and not about the number of cats in the house. On the issue of whether the

defender stopped her from securing employment in Dubai, it seemed to be accepted that

there was a difficulty with recognition of her qualifications. The evidence of NM was that

the pursuer did not follow up her offer of sending a CV to a local medical practice and she

seemed to think that there was more than one reason behind the pursuer’s lack of

employment. But that issue arose early in the marriage and the situation changed once JW

was born. What I do accept is the pursuer’s evidence that the defender would remind her

that she had no job and no visa but for him and that he could keep her out of the country

without JW. He used her dependence on him as an instrument of control.

[35] The clear picture that emerged from the pursuer’s evidence was of a woman who

had considered that, while it involved risk, it was worth leaving her family and work as a

medical practitioner in Russia for the emotional security of an older man and the hope of

children. She was prepared to put up with quite a lot of unpleasant behaviour, such as

offensive remarks about her family and the defender’s control over her child’s citizenship

and travel in return for that stability. It became clear, however, that her views on any matter

were totally disregarded and that the defender viewed her worth as merely the object of his

excessive sexual demands. That, coupled with her lack of financial independence and the

relegation of her role to cooking and looking after her husband and son, led the pursuer to

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become unhappy and upset and feel trapped in “a sort of slavery”. Her husband’s refusal to

countenance her travelling to Russia with JW to visit her elderly mother and/or to secure a

Russian passport for him added to that feeling of entrapment.

[36] The defender’s version of events does not withstand scrutiny. He averred in divorce

proceedings raised by him in Inverness Sheriff Court that the parties had not engaged in

marital relations since JW’s birth in 2012. He claimed that 22 September 2012 was the date of

separation not just in those proceedings but before this court until 28 May 2020 when he

eventually adjusted his pleadings to concede a relevant date of 5 September 2018. The

pursuer had initially contended that he moved out on 7 September 2018 but when it was

clarified that his lease started on the 5 September she agreed the date two days earlier. The

defender’s initial position appeared to be that he was advised that he could contend that the

date of separation was the date on which he and his wife started living separately within the

family home. That was departed from because he conceded not just ongoing sexual

relations but also family meals, trips and other aspects of routine family life as a couple for

many years after his initial date. His inconsistent and developing position on the issue of

the parties’ sexual relations has contributed to my rejection of his account on other matters.

Even during the course of his cross examination he moved from sexual relations being

“intermittent” until 2014 when they ceased (the position in his affidavit but not his

pleadings) to being “even more intermittent between 2014 and 2017”, a new date offered for

the last time he and his wife had sexual relations. Despite there having been no challenge to

his wife’s contention that they had engaged in sexual relations until April 2018 he seemed to

deny that later date. His evidence of sexual relations having petered out did not sit well

with the line taken in cross examination of the pursuer that she was the one obsessed with

sex.

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[37] There were other matters about which the defender’s position was highly

unsatisfactory and indicative of the very behaviour about which the pursuer complained.

His evidence on a passport for JW illustrated that it had never occurred to him that his wife,

the child’s primary carer, should have a say in what passport or passports the child should

hold. His assertion that he would make sure his wife never managed to take the child to

Russia (even for a visit) by keeping his UK passport away from her was indicative of the

controlling behaviour described by the pursuer. His evidence that he hadn’t thought about

the financial advantage he would gain from being divorced in Dubai was nothing short of

ridiculous, perhaps something he realised and so changed his position on that too.

[38] In light of the defender’s inconsistent and unbelievable position on these important

matters, I am even more inclined to accept the pursuer’s version of events. She was upset by

her husband’s constant demands for sex and the emotional pressure he brought to bear if

she refused. Her distress at the situation was observed by her friend NM at the time. I

accept NM’s evidence in its entirety. She had no complaint to make about the defender’s

behaviour to her or in her presence. The fact that his welcoming behaviour to NM and the

absence of incidents when the parties were socialising with her, far from supporting the

defender’s version of events, is consistent with the pursuer’s account that it was when they

were alone that he denigrated and objectified her. NM was in no doubt about the truth of

the pursuer’s confidences. She formed the impression that her friend had lived with this

man for too many years already and so, despite his behaviour, she expected that the

situation would simply continue. Against that background, matters did come to a head

between the parties because the pursuer became suspicious of her husband being away

more at weekends and then found emails with pictures from other women on his electronic

device. Whether or not those young women were paid escorts doesn’t matter. Whether the

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device was a laptop, iPad or other tablet is a matter of description and not of substance. The

pursuer immediately told her friend and confidante, NM about the emails and about

condoms she had found. She became enraged and confronted her husband.

[39] I accept also the evidence of EI, the pursuer’s sister, that during the marriage she

and her sister had to communicate without the defender knowing about it and that when on

one occasion the pursuer had called her when the defender was at home he had become

angry. EI was the pursuer’s second confidante and the person to whom she described the

defender as “arrogant and mean” complaining that he was becoming more so as the years

went on, particularly during the last three years of the marriage. EI was clear that she was

told over a period that the defender was becoming more difficult to live with.

[40] The defender’s own evidence supported that in August 2018 there was a momentous

row in which his wife was shouting and screaming mostly in Russian, an easily

understandable response to the discoveries the pursuer had made. Oddly, both in his

affidavit and in oral evidence, the defender said that he couldn’t recall the cause of the last

major row with his wife in August 2018, despite his having left to go and stay in a hotel that

night. In my view the pursuer’s position makes more sense because the discovery of

messages from unknown women was the ultimate insult from a man whose controlling

behaviour she had endured for the sake of their son. When she confronted the defender in

anger he withdrew from the situation and thereafter it was inevitable that the relationship

was at an end, albeit that the final departure by AAW to his new accommodation was not

until 5 September 2018.

[41] It should be understood that behaviour after the date of the parties’ separation is not

irrelevant. The defender’s actions in raising divorce proceedings in Inverness sheriff court

with false averments about his residence, whether care arrangements for JW had been

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agreed and about when the parties last lived together are consistent with his determination

to control matters and to say what he deems to be necessary to secure financial advantage.

The act of dropping off a bottle of vodka to his estranged spouse when she does not drink

that spirit and lives as a foreign national without a licence to have alcohol in a country like

UAE is further behaviour that has no reasonable explanation other than a desire to cause

difficulties for the pursuer’s already precarious right to reside there. Standing the

derogatory terms in which the defender spoke of his wife and the lengths to which he has

gone to divorce her in a country where she is unlikely to secure any financial provision on

divorce, I reject his evidence that it was a gesture of kindness.

[42] There were other chapters of evidence about which I should comment but which are

not so material to my decision. The episode involving the defender’s son early in the

marriage when the pursuer said she found evidence of him having sex with women in the

house while they were away was not about AW’s behaviour. It was an example of the

defender refusing to support his wife and speaking derogatorily to her. AW was not asked

directly whether he had engaged in such behaviour, he was asked whether he recalled such

an incident and he said he did not. The pursuer was clear that she had not challenged AW

directly as she considered it more appropriate to tell his father, his parent, about this matter.

Nothing AW said in evidence led me to reject the pursuer’s version of events. On the

incident when JW was about 2 years old and there was an accident when he was with AW

which the pursuer thought at the time was more serious than transpired, it is clear that her

first reaction when panicking was to blame AW and scream at him. I reject that she also

lashed out physically on that occasion, at least not to the extent he claimed. In any event, it

was an isolated incident between her and AW and at all other times his complaint seemed to

be that she was a little cold and distant towards him. That was not the pursuer’s perception,

Page 22 ⇓

but given the unhappiness in the parties’ marriage and the defender’s lack of support for her

when she raised the issue of AW’s behaviour when he was 16, it is hardly surprising that she

and AW may not have been close. It was undisputed that AW has a close relationship with

JW and the pursuer has facilitated that, having agreed to AW staying in the family home

with her and JW in November 2018 after the parties had separated. Much of AW’s evidence

was about the cats, a topic that was undoubtedly the source of annoyance for the defender.

While he was clearly supportive of his father’s position, his knowledge of the parties’

relationship was limited to annual holidays in Dubai and it is not surprising that as a very

young man he did not observe or understand the dynamic in the couple’s relationship. He

was not close to the pursuer and would never have been her confidante. His evidence was of

very limited assistance.

[43] The evidence of the defender’s colleague Mr KA, supports that the defender

complained about the cats from time to time at work and also that he indicated the marriage

was becoming unhappy. That does not detract from the pursuer’s case about the defender’s

behaviour. I conclude that while the defender behaved in the way the pursuer described, he

too was becoming discontented with the relationship. He accepted in his supplementary

affidavit (at paragraph 19) that he had at least tolerated the cats being in the utility room of

the family home from about 2015 and so his allergy did not prevent him being in the same

property as the cats if they were separate from the couple’s living and sleeping

accommodation. The pursuer appears to have become less careful in later years to ensure

that the cats were restricted to that area, although her evidence that she kept them outside

other than at night suggests that she did not let them roam around the house deliberately.

AW noticed a contrast between pre separation and post separation in relation to the number

of cats. The defender’s position on the cats and how much they troubled him and that he

Page 23 ⇓

would argue with his wife about them sits uneasily with his position to this court until

28 May that he and his wife were not living together as a couple from September 2012. It is

more consistent with the pursuer’s position of remaining in an unhappy marriage for the

sake of her son.

[44] It was submitted on behalf of the defender that it would be particularly difficult to

assess credibility of the parties and their witnesses in this case because the proof had been

conducted remotely on video screens. While there were some technical difficulties from

time to time with witnesses’ wireless connectivity and/or sound quality, I have no hesitation

in rejecting that submission. My vision and ability to hear the witnesses was clear and

unimpeded. The pursuer came across as emotional and a little fraught, speaking as she was

in her second language. She sometimes used hyperbole to make a point – for example she

said her son cried and did not sleep for 24 hours a day seven days a week as a baby, when

she clearly intended to make the point that he was a particularly wakeful and demanding

infant, not that he literally did not sleep. That type of linguistic nuance was as easy to pick

up on screen as it would have been in the courtroom. So far as the defender is concerned, I

have assessed his lack of credibility on the inconsistencies in his different accounts and the

documentation and concluded that these illustrate his willingness to make false statements

to secure a desired result. However, insofar as relevant, my conclusion on that is fortified by

the way in which he gave his evidence as video recorded. On one occasion in cross

examination when it was asserted to him that he had used foul and derogatory terms to his

wife he leant forward towards the camera to state his denial in what I noted at the time was

an aggressive manner. He rolled his eyes more than once when he was asked questions

about the sexual allegations and he folded and unfolded his arms. He became noticeably

red in the face when he denied calling his wife her “friendly rapist” and then appeared to

Page 24 ⇓

admit it but said that his wife had instigated the term. He laughed when it was suggested

that he would sulk and become difficult if his wife refused to have sex with him and when

he said he couldn’t recollect having had sex the last time in April 2018 in the parties’ kitchen.

My observations of his behaviour were noted just as I would have done had he been

appearing in a physical court. The connectivity and sound difficulties had no bearing on

that assessment, or on my ability to assess the credibility and reliability of NM, EI and AW.

It was a little unsatisfactory that NM and EI gave evidence using mobile telephones but

again that does not have a bearing on my assessment of credibility and reliability.

Application of the law to the facts

[45] The sole legal basis for granting decree of divorce is the establishment of the

irretrievable breakdown of the marriage – section 1(1)(a) of the Divorce (Scotland) Act 1976.

One of the bases that a pursuer can rely on for establishing such irretrievable breakdown

arises if –

“ since the date of the marriage the defender has at any time behaved (whether or

not as a result of mental abnormality and whether such behaviour has been active or

passive) in such a way that the pursuer cannot reasonably be expected to cohabit

with the defender” (section 1(2)(b))

The test of reasonableness is not an objective one in the sense that one requires to assess

what is reasonable for the party or parties concerned taking into account their particular

circumstances. While the requirement for corroboration in civil proceedings was abolished

generally with the coming into force of the Civil Evidence (Scotland) Act 1988, a special rule

applies for actions of divorce, separation, declarator of marriage and declarator of nullity of

marriage. For those specified actions, section 8(3) of the 1988 Act provides that the evidence

“…shall consist of or include evidence other than that of a party to the marriage.” In

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Taylor v Taylor [2000] Fam LR 78 an Extra Division of the Inner House rejected a contention

that the law requiring corroboration of material facts had been retained for proceedings of

this type. The court acknowledged that section 8(3) required evidence from outside the

marriage to be led and that it provided a further safeguard against collusion, adding

“But that subsection must, in our opinion be interpreted in its own terms: reference

to the familiar doctrine of corroboration could easily have been made, if Parliament

had intended that doctrine should be applied.”

[46] The evidence of the pursuer’s witnesses comprises mostly hearsay and so the weight

of that evidence requires to be considered carefully. I have already indicated that I accept

the evidence of NM and EI as providing support for and being consistent with the pursuer’s

account on important matters. In any event, two aspects of NM’s evidence in particular go

beyond what she was told by the pursuer. First, she observed her close friend’s reaction, her

considerable upset at the events in the home she was describing. Secondly, NM formed her

own impression that the pursuer had put up with the defender’s behaviour longer than

should be required, citing that as the reason why in the Spring of 2018 she had expected that

the marriage would continue. In other words, accepting as she did that her friend was

truthful, she viewed the situation as more than the pursuer could reasonably put up with,

whether or not the marriage in fact continued. EI’s evidence that the defender was angry

when she telephoned the pursuer when he was at home is also evidence of the pursuer’s

account on which I have relied. I conclude that there is ample evidence from outside the

marriage to satisfy the requirements of section 8(3).

Conclusion

[47] I am satisfied that the evidence of the pursuer on the four material areas listed as

disputed issues is credible and can be relied on. There is also sufficient credible and reliable

Page 26 ⇓

supporting evidence as required by section 8(3) of the Civil Evidence (Scotland) Act 1988. I

find that the parties’ marriage has broken down irretrievably and that the defender has

behaved in such a way that the pursuer cannot reasonably be expected to cohabit with him.

I am satisfied that the current arrangements for the care of JW, the child of the marriage, are

in his best interests and present no impediment to decree being granted. Accordingly, I will

grant decree of divorce.

[48] In terms of section 12(1)(b) and 13(1)(b) of the Family Law (Scotland) Act 1985 and

on the motion of the pursuer, I will defer decisions on financial provision for the pursuer for

a specified period. Mr McAlpine on her behalf has asked for a 12 month delay but I consider

that to be too long, even allowing for any perceived difficulties with disclosure of the

defender’s financial circumstances. I expect parties to fix a proof on financial provision

orders for no later than the Spring of 2021.