Scottish Sheriff Court Decisions

You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> JOHN McQUEEN LIVIE v. ANN JOHNSEN NORRIE or LIVIE [1999] ScotSC 20 (8th July, 1999)
URL: http://www.bailii.org/scot/cases/ScotSC/1999/20.html
Cite as: [1999] ScotSC 20

[New search] [Help]

JOHN McQUEEN LIVIE v. ANN JOHNSEN NORRIE or LIVIE [1999] ScotSC 20 (8th July, 1999)

SHERIFFDOM OF TAYSIDE CENTRAL AND FIFE AT DUNDEE
DD18097	JUDGMENT OF SHERIFF R.A. DAVIDSON
	in the cause
	JOHN McQUEEN LIVIE
	pursuer
	against
	ANN JOHNSEN NORRIE OR LIVIE
	defender

Dundee, 6th. July, 1999. The Sheriff, having resumed consideration of the cause, finds the following facts admitted or proved:-

1. The pursuer is John McQueen Livie, aged 40, residing at 50D Belltree Gardens,

Barnhill, Dundee. He is a workshop manager with a firm of shopfitters.

2. The defender is Ann Johnsen Norrie or Livie, aged 40, residing at 9 Greenstone Place,

Dundee. She is employed as a customer services assistant.

3. The parties were married on 21^st. October, 1978 in Dundee, conform to certificate of

marriage, No. 5/1/1 of process.

4. There are two children of the parties' marriage, namely Cheryl Livie, born 11^th. July,

1982 and Scott Norman Livie, born 27^th. March, 1985. Only Scott remains under 16.

5. It is agreed (Joint Minute of Admissions No. 18 of process) that the relevant date for

the parties' separation is 1^st. July, 1992.

6. Since 1^st. July, 1992, the parties have not resided together nor had sexual relations with

each other. More than five years have accordingly elapsed since they last cohabited.

7. Both parties reside within the Sheriffdom of Tayside, Central and Fife and have done

so for periods in excess of one year prior to the commencement of these proceedings.

8. There are no proceedings in any other court which affect the validity or subsistence of

the parties' marriage or any of their rights or responsibilities relating to their children,

either in Scotland or elsewhere.

9. There is no prospect of a reconciliation between the parties.

10. The children, Cheryl and Scott, continue to reside with the defender whose care for

them is recognised as being without cause for criticism. They reside with her in the

former matrimonial home.

11. The children have no contact with the pursuer.

12. The former matrimonial home at 9 Greenstone Place, Dundee is jointly owned by the

parties. It is agreed that at the relevant date, 1^st. July, 1992, its value was Ł47,000. It is

agreed that at the relevant date, there was a mortgage secured over the property in

favour of the Bank of Scotland for which the redemption figure was Ł34,252.83. The

mortgage is endowment linked there being an endowment policy in the parties' joint

names with Legal and General Assurance Society numbered 007401498 which it is

agreed had a surrender value at the relevant date of Ł1,163.70.

13. The parties had in their joint names a further endowment policy with Abbey Life

Assurance Company Limited number 078/9809951K. At the relevant date, its

surrender value was Ł402.56.

14. At the relevant date, the parties owned a Vauxhall Nova motor car which was sold by

the pursuer for the sum of Ł2,000 which he retained. Said sum earned interest of

Ł62.59 between the date of sale and the closure of the bank account on 22^nd June,

1994.

15. Since the relevant date the defender has made all payments to the Legal & General

Insurance Society in respect of policy number 007401498 which, in total, amount to

Ł3,039.60 up to 9^th. March, 1999.

16. Since the relevant date, the defender has made all monthly payments of the mortgage

to the Bank of Scotland.

17. In 1994, the pursuer raised against the defender an action of division and sale in

respect of the former matrimonial home. The case went to proof and the pursuer's

crave was refused, with expenses in favour of the defender, on the exercise by the

court of the discretion conferred upon the court by Section 19 of the Matrimonial

Homes (Family Protection)(Scotland) Act, 1981, principally on the basis that the

defender had the continuing task and responsibility to bring up the two children of the

marriage.

18. The pursuer and his present partner are joint pro indiviso proprietors of 50D Belltree

Gardens, Barnhill, Dundee which has a present value of approximately Ł42,000,

subject to a joint mortgage of Ł38,000.

19. The pursuer presently pays Ł419.30 per month to the Child Support Agency, which

includes a measure of payment to reduce arrears. The actual current assessed rate (as

at March 1999) is Ł397.00 per month. He is in arrears only on account of the Child

Support Agency having presented him with a backdated increased assessment. While

the pursuer has made payments of aliment or to the Child Support Agency from the

date of separation, he has not made any contribution otherwise towards the mortgage

or endowment premia.

20. The pursuer's salary statement to 26^th. February, 1999 is production 5/1/3. It

demonstrates that for the eleven months to that date his average net salary monthly

after deduction of tax and national insurance contributions amounts to Ł1,636.90.

21. The pursuer's new partner is in full time employment but currently makes no

contribution to his present mortgage. However, she met the community charges for

the couple as well as buying the shopping and meeting the telephone bill.

22. The pursuer is repaying a bank loan of Ł1,800 at Ł148.03 per month taken out to

finance a foreign holiday to Florida in 1998.

23. The pursuer has a company car exclusively allocated to his use.

24. The parties' 16 year old daughter, Cheryl, is presently a pupil at Menzieshill High

School in Dundee. It is her intention to undertake a sixth year at school and she hopes

thereafter to be in a position to go to university or college. Their son Scott is presently

a second year pupil at the same school and will enter third year in August, 1999. He

has presently the ambition of becoming an architect. In the case of Cheryl, it is

a reasonable inference that she will undergo another four years of education. For that

to be affordable, she is likely to require to have to reside at home. In the case of Scott,

another six or seven years of education is a distinct possibility. The children are

happy and secure in their present home and it is near their school.

25. The defender is employed by Tesco plc on a part time basis and earns about Ł174 net

per week. Her partner is a scaffolder earning about Ł180 net per week. The defender

also receives child benefit of Ł83.00 per week. Her partner has two children in respect

of whom he makes alimentary payments of between Ł40 to Ł50 per week.

26. TSB Bank plc have indicated, as at 16^th. February, 1999, that they would be prepared

to lend the defender Ł34,000 subject to her continuing to be employed by Tesco

Stores Limited earning about Ł7500 per annum and to be in receipt of Child Support

Agency payments of Ł397.97 per month to enable her to replace the existing

mortgage which is in the joint names of the parties over 9 Greenstone Place, Dundee.

Similarly the Bank of Scotland, the present heritable creditors, have indicated their

approval in principle to the mortgage being transferred from the parties' joint names

to the sole name of the defender. Meantime the defender has taken out a further

endowment policy with Co-operative Insurance Society Limited at a monthly

premium of Ł26.20 which would be a suitable vehicle for supporting any new loan

she may obtain in respect of 9, Greenstone Place.

27. Neither the defender nor the children have been able to go on holiday since 1992

when the parties separated.

28. The defender spends about Ł150 per week on shopping for herself, her partner and

the two children. She pays a hire purchase contract for a personal computer for the

children at Ł79.76 per month. Neither she nor her partner run a motor vehicle. They

both require to work overtime to make ends meet. Even with a contribution from

her partner towards the mortgage, electricity, gas, contents insurance, telephone,

television licence, shopping and council tax, her usual outlays amount to just

under Ł1100 per month from an income of about Ł1130 per month. The defender

is in no position to undertake further substantial borrowing.

29. The pursuer's monthly commitments include cable television at Ł40.48, life assurance

at Ł54.00, a personal pension contribution at Ł101.31 and membership of a health

club at Ł29.00 per month. Even with these payments, his income exceeds his

outgoings by Ł405.19 per month.

30. The present value of the former matrimonial home is Ł51,000. The redemption figure

for the mortgage remains at Ł34,225.01. The present surrender value of the Legal &

General endowment policy numbered 007401498 in parties joint names is Ł5966.70.

Finds in fact and law:-

1. Both parties being habitually resident within the sheriffdom and, at any rate, both

having lived within the sheriffdom for a period in excess of 40 days prior to the

commencement of these proceedings, this court has jurisdiction in terms of section

8 of the Domicile and Matrimonial Proceedings Act, 1973.

2. The parties having lived apart for a period in excess of five years and there being

no prospect of a reconciliation, their marriage has broken down irretrievably.

3. The relevant date as defined in section 10(3) of the Family Law (Scotland) Act, 1985,

being the date upon which parties ceased to cohabit, is 1^st. July, 1992. That is the date

at which the net value of the matrimonial property should be assessed. The net value of

the parties' matrimonial property at that date is Ł16,313.43, being the value of the

matrimonial home less the mortgage redemption figure, the surrender values of the

two joint endowment policies plus the value of the Vauxhall Nova motor car. One

half of that figure would be Ł8,156.71. The pursuer took with him and subsequently

sold the car for Ł2,000. Therefore, on the hypothetical bases of equal sharing being

appropriate and disposal of assets at the relevant date, the balance to be received by the

pursuer would be Ł6,156.71 again on the hypothesis that he transferred all his interests

in the assets which consisted entirely of items of joint property.

4. In the circumstances of the present case, there is no basis upon which the court

can conclude that the fair sharing of the matrimonial property can be achieved

other than by its equal division on the basis of its value at the relevant date.

5. To achieve that equal sharing in the present case, it will be necessary to make

orders for the transfer of the pursuer's interests in the former matrimonial home

and the two joint endowment policies. These transfers should be effected upon

the basis of the value of these assets at the relevant date. No allowance can be

nor should be made for any increase in their value since the relevant date.

6. While the pursuer should receive a capital payment, no basis is made out to

justify any award of interest thereon prior to the date of decree.

7. If the defender has transferred to her the pursuer's interests in the former

matrimonial home and the two joint endowment policies, there would be no

justification for making a payment to her of any further capital payment.

8. If the pursuer's interests in the former matrimonial home and the two joint

endowment policies are transferred to the defender, there is no basis otherwise

in the circumstances of the present case, for making any order against the pursuer

relating to payment of any part of the mortgage or endowment premia since the

relevant date given that she has occupied the property since the relevant date.

Accordingly, sustains the first plea in law for the pursuer and in terms thereof, finds that the parties marriage has broken down irretrievably by reason of their non-cohabitation for a period in excess of five years and that decree of divorce should be granted and decerns accordingly; sustains the third plea in law for the pursuer and refuses to make any award of capital payment to the defender; sustains the sixth plea in law for the pursuer and finds him entitled to a capital payment from the defender in the sum of SIX THOUSAND ONE HUNDRED AND FIFTY SIX POUNDS AND SEVENTY ONE PENCE (Ł6,156.71) STERLING, said capital payment to be paid within fourteen days of the pursuer having effected to the defender the various transfers hereinafter ordered with interest thereon at the rate of eight per centum per annum from that date (i.e. the date upon which payment should thus be effected) until payment; refuses the second, fourth and fifth pleas in law for the pursuer; sustains the first plea in law for the defender and in terms thereof ordains the pursuer to transfer to the defender his reversionary interest in the parties' former home at 9, Greenstone Place, Dundee and ordains the defender to complete all documents necessary to effect said transfer and that within twenty eight days of the date of decree; further ordains the pursuer to transfer to the defender his right, title and interest in Legal & General Assurance Society's endowment policy numbered 007401498 presently in the joint names of said parties and that within twenty eight days of this date and ordains him to complete all documentation necessary to effect said transfer; further ordains the pursuer to transfer to the defender his right, title and interest in Abbey Life Assurance Company Limited endowment policy numbered 078/9809951K presently in the joint names of said parties and that within twenty eight days of this date and ordains him to complete all documentation necessary to effect said transfer; further ordains the defender to intimate this decerniture to the Bank of Scotland as the holders of the standard security over 9 Greenstone Place, Dundee, and to said Legal & General Assurance Society and Abbey Life Assurance Company Limited in order that they may not pretend ignorance thereof; refuses the third, fourth, fifth and sixth pleas in law for the defender; appoints parties to be heard on all questions of expenses associated herewith and assigns as a diet therefor.

NOTE

Authorities referred to:

1. Wallis v Wallis 1993 SLT 1348

2. Geddes v Geddes 1993 S.C.L.R. 299

Textbook referred to:

The Law of Husband and Wife in Scotland: Clive : 4^th. edition esp paras. 24.028

Relevant Statutory Provisions:

1. Matrimoninal Homes (Family Protection) (Scotland) Act, 1981 section 19:-

" Where a spouse brings an action for the division and sale of a matrimonial home which the spouses own in common, the court, after having regard to all the circumstances of the case including -

(a) the matters specified in paragraphs (a) to (d) of section 3(3) of this Act; and

(b) whether the spouse bringing the action offers or has offered to make available to the

other spouse any suitable alternative accommodation,

may refuse to grant decree in that action or may postpone the granting of decree for such period as it may consider reasonable in the circumstances or may grant decree subject to such conditions as it may prescribe."

2. Family Law (Scotland) Act, 1985, sections 8, 9, 10 and 14(2)(j):-

"8 - (1) In an action for divorce, either party to the marriage may apply to the court for

one or more of the following orders-

(a) an order for the payment of a capital sum to him by the other party to the

marriage;

(aa) an order for the transfer of property to him by the other party to the marriage;

(b) an order for the making of a periodical allowance to him by the other party to the

marriage;

(2) Subject to sections 12 to 15 of this Act, where an application has been made

under subsection (1) above, the court shall make such order, if any, as is -

(a) justified by the principles set out in section 9 of this Act; and

(b) reasonable having regard to the resources of the parties.

(3) An order under subsection (2) above is in this Act referred to as an "order for

financial provision."

9. The principles which the court shall apply in deciding what order for financial

provision, if any, to make are that -

(a) the net value of the matrimonial property should be shared fairly between the

parties to the marriage;

(b) fair account should be taken of any economic advantage derived by either party

from contributions by the other, and of any economic disadvantage suffered by

either party in the interests of the other party or of the family;

the age of 16 years should be shared fairly between the parties;

(d) a party who has been dependent to a substantial degree on the financial support of

the other party should be awarded such financial provision as is reasonable to

enable him to adjust, over a period of not more than three years from the date of the

decree of divorce, to the loss of that support on divorce;

(e) a party who at the time of the divorce seems likely to suffer serious financial

hardship as a result of the divorce should be awarded such financial provision

as is reasonable to relieve him of hardship over a reasonable period.

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

"economic advantage" means advantage gained whether before or during the

marriage and includes gains in capital, in income and in earning capacity, and

"economic disadvantage" shall be construed accordingly;

"contributions" means contributions made whether before or during the marriage;

and included indirect and non-financial contributions and, in particular, any such

contribution made by looking after the family home or caring for the family.

10. (1) In applying the principle set out in section 9(1)(a) of this Act, the net value of the

matrimonial property shall be taken to be shared fairly between the parties to the

marriage when it is shared equally or in such other proportions as are justified by

special circumstances.

(2) The net value of the matrimonial property shall be the value of the property at the

relevant date after deduction of any debts incurred by the parties or either of

them-

(a) before the marriage so far as they relate to matrimonial property, and

(b) during the marriage,

which are outstanding at that date.

(3) In this section "the relevant date" means whichever is the earlier of

(a) subject to subsection (7) below, the date on which the parties ceased to

cohabit;

(b) the date of service of the summons in the action for divorce.

(4) Subject to subsection (5) below, in this section and in section 11 of this Act

"the matrimonial property" means all the property belonging to the parties or

either of them at the relevant date which was acquired by them or him (otherwise

than by way of gift or succession from a third party)-

(a) before the marriage for use by them as a family home or as furniture or

plenishings for such home; or

(b) during the marriage but before the relevant date.

(5) The proportion of any rights or interests of either party under a life policy or

occupational pension scheme or similar arrangement referable to the period to

which subsection (4)(b) above refers shall be taken to form part of the

matrimonial property.

(6) In subsection (1) above "special circumstances," without prejudice to the

generality of the words, may include -

(a) the terms of any agreement between the parties on the ownership or division

of any of the matrimonial property;

(b) the source of the funds or assets used to acquire any of the matrimonial

property where those funds were not derived from the income or efforts of

the parties during the marriage;

(d) the nature of the matrimonial property, the use made of it (including use for

business purposes or as a matrimonial home) and the extent to which it is

reasonable to expect it to be realised or divided or used as security;

(e) the actual or prospective liability for any expenses of valuation or transfer

of property in connection with the divorce.

(7) For the purposes of subsection (3) above no account shall be taken of any

cessation of cohabitation where the parties thereafter resumed cohabitation,

except where the parties ceased to cohabit for a continuous period of 90 days

or more before resuming cohabitation for a period or periods of less than 90

days in all.

14. (1) Subject to subsection (3) below, an incidental order may be made under section

8(2) of this Act before, on or after the granting or refusal of decree of divorce.

(2) In this Act, "an incidental order" means one or more of the following orders-

(d) an order regulating the occupation of the matrimonial home or the use of

furniture and plenishings therein or excluding either party to the marriage

from such occupation;

(j) an order as to the date from which any interest on any amount awarded shall

run."

In this action of divorce, the parties were both aged 40. They had married on 21^st. October, 1978 and had separated on 1^st. July, 1992. They had two children now aged 16 and 14, both of whom continued to reside with the defender. Both children were still at school and it was the defender's position, which was not disputed, that both intended to proceed to higher education but to continue to reside at home for the foreseeable future. It was admitted that there had been no cohabitation since 1^st. July, 1992 and that there was no prospect of a reconciliation and this is supported by an affidavit from the pursuer's sister, Mrs. Norma Colville, which is No.14 of process. The parties' marriage has accordingly broken down by reason of their non-cohabitation for a period in excess of five years and I shall accordingly grant the pursuer's request that decree of divorce be granted.

The parties were at odds as to how their matrimonial property should be shared. Helpfully, the parties had prepared and lodged a Joint Minute of Admissions, No.18 of process, in which the major matrimonial assets were recorded and their values were agreed. Otherwise, I heard evidence from the pursuer and the defender only and have come to the view that there was really nothing controversial in their evidence which requires to be resolved. The dispute, as I have said, really focused solely on what may be described as legal rather than factual issues.

The property concerned consisted of the former matrimonial home at 9 Greenstone Place, Dundee, which, it was helpfully agreed, had a value of Ł47,000 at the relevant date, which was also helpfully agreed to be 1^st. July, 1992, but was then subject to a mortgage of Ł34,252.83 with the Bank of Scotland being the heritable creditors, which mortgage was endowment linked, the policy providers being the Legal & General Assurance Society under policy 007401498, which had a surrender value of Ł1,163.70 at the relevant date. The house, the mortgage and the policy were all in the parties' joint names. The net value of the house as matrimonial property was accordingly Ł12,747.17. Further items of matrimonial property have to be searched for in the pleadings and it is a pity that the parties, both of whom sought orders under section 8 of the Family Law (Scotland) Act, 1985, failed to apply their minds to the need to set out clearly in the pleadings what the matrimonial property consists of with their respective assessments of the values of each item. It appears to be agreed that the pursuer retained a car which, at the relevant date, was worth Ł2,000. That can be inferred from his evidence that that is the price he obtained for it within four months of the relevant date. It was further admitted that the parties had a joint endowment policy with the Abbey Life Assurance Company Limited, numbered 078/9809951K. The surrender value of that policy at the relevant date was agreed to be Ł402.56. The defender in Answer 6 makes reference to the pursuer having a personal pension plan but no evidence was led about this and I was not asked to take it into account. The defender's salary statements suggest that she too is paying into a pension scheme, but that does not even rate a mention in the pleadings and no evidence was led as to its value. There is no evidence about the existence of any other item of matrimonial property. Matrimonial property accordingly comprises:-

1. Net value of jointly owned matrimonial home Ł12,747.17

2. Surrender value of L & G endowment Ł 1,163.70

3. Surrender value of Abbey Life endowment Ł 402.56

4. Value of Vauxhall Nova motor car Ł 2,000.00

Ł16,313.43

Half of the value of the matrimonial property is, accordingly, Ł8,156.71

The pursuer kept the car, sold it and retained the proceeds of Ł2,000, so he now requires to get Ł6,156.71 to achieve equality whereas the defender requires to get Ł10,156.71. This can be achieved by the defender paying to the pursuer the sum of Ł6,156.71 and the pursuer transferring to her his interest in the house and the two endowment policies which have a total value of Ł14,313.43. I have accordingly decerned in favour of the pursuer that he should receive a payment of Ł6,156.71 from the defender and that he should receive payment of that sum within fourteen days of having effected the transfer of his right, title and interest in the former matrimonial home and the two joint endowment policies.

Several arguments were advanced by the parties in an effort to complicate this straightforward exercise. To be fair to the pursuer, he graciously conceded that if a result satisfactory to him in cash terms could be achieved, he would no longer oppose the transfer to the defender of his reversionary interest in the matrimonial home and both agents urged me to try to achieve a conclusion which would give effect to that concession, which I have striven to do. It was further agreed, though it seemed to me to be of less importance, that the pursuer would not oppose the transfer of his interest in the Legal & General endowment policy if his demands could be met in cash and I have given effect to that desire also.

No argument was addressed to me which would have permitted me to depart from the usual position reached by the application of sections 8, 9, and 10 of the Family Law (Scotland) Act, 1985 that fair sharing of the matrimonial property equates to equal sharing thereof. I was a little surprised that the defender's agent did not submit that there was a case for inequality of sharing on the principles enunciated in section 9 (1)(b) and (c) of the Act, given that she was left to care for the parties' children. In fairness, that may reflect the position that the pursuer has paid aliment either voluntarily at the outset or later under the direction of the Child Support Agency, but, for the avoidance of doubt, I reach no conclusion on the applicability of the principles set out in 9(1)(b) and (c) because I was not asked to rather than because I am of the opinion that they do not have such application notwithstanding payment in accordance with orders from the Child Support Agency from the relevant date onwards.

It was accepted that the starting point in any assessment of what orders for financial provision on divorce would be appropriate was section 8 of the Act. Any order has to be justified by the principles contained in Section 9 and has to be reasonable having regard to the resources of the parties.

The defender's agent appeared to argue that section 8(2)(b) applied to the present circumstances. This arose as a consequence of what appeared to be confusion in her mind about the position of the house. She appeared to think that somehow, on the hypothesis that the defender needed to retain the house to enable her to care for the children, the house could be taken out of the equation in which the value of matrimonial property was ascertained, and with the house removed from the equation, it could be demonstrated that the defender had no savings, her income from her part time employment was pooled with that of her new cohabitee but still left almost nothing to meet a capital payment, and the only way she could meet a capital payment would be from her interests in the endowment policies so any award of capital should be restricted to that sum. There is, however, no provision in the Act which permits the court to set to one side the matrimonial home on the basis that enforced departure from it should not be countenanced. Any such right and on divorce it would necessarily be a limited right can only arise under the provisions of the Matrimonial Homes (Family Protection)(Scotland) Act, 1981 especially section 19 where the house is jointly owned or as an incidental order under section 14(2)(d) of the Family Law (Scotland) Act, 1985. So the approach on the basis that the defender had insufficient resources to meet the capital sum sought because the house should be removed from the picture because it was necessary that the pursuer and the children should continue to have it available to them proceeded on a misunderstanding of the law and is untenable, at least in the absence of any crave for an order under either of the foregoing provisions.

Two arguments were advanced by the pursuer's solicitor to persuade me to depart from the conclusion I have reached, namely (i) that the increase in the value of the jointly owned property comprising the house and the two endowment policies should belong to the parties equally on the approach promoted by Professor Clive at para.24.028 of the 4^th, edition of "The Law of Husband and Wife in Scotland," and (ii) that the sole occupation of the former matrimonial home by the defender from the relevant date onwards justified the pursuer seeking, by way of an incidental order in terms of Section 14(2)(j) of the Act, an order for interest on any award of capital payment from the relevant date.

As to the first, the pursuer's agent directed me to Professor Clive's text, as aforesaid, which purports to state the law in the following terms:-

" Increases in the value of the matrimonial property after the relevant date are not covered by the Act's provisions on the fair sharing of matrimonial property. This is clear from the terms of the Act. If any confirmation were needed, it has been supplied by the decision of the House of Lords in Wallis v Wallis 1993 SLT 1348. The question of entitlement to such increases in value is therefore governed by the common law. The basic common law rule is that an increase in the value of property between any two dates accrues for the benefit of the owner or owners. Accordingly, if, say, a house which is matrimonial property at the relevant date belongs throughout to the husband alone, any increase in value between that date and, say, the date of divorce will benefit him. If the house belongs to the wife alone the increase in value will benefit her. If the house is owned by the husband and wife in equal shares the increase will benefit both of them equally. This fundamental common law principle that the owner gets the benefit of increases in value between two dates is not, and could not be, affected by Wallis v Wallis."

In Wallis v Wallis, the only substantial asset constituting matrimonial property was the matrimonial home. As can be seen from the judgment at page 1350 of Lord Keith of Kinkel, the matrimonial home was worth Ł44,000 at the relevant date but had increased in value to Ł68,000 by the date of the proof before the sheriff. The house was, as in this case, jointly owned so the case is on all fours with the present. The sheriff (A.B. Wilkinson Q.C.) took the view that, in a case where the appropriate thing to do was to transfer the pursuer's interest in the property to the defender, he should order the defender to make a "compensating" payment of capital which incorporated half the increase in value of the house between the relevant date and the date of decree. One can readily see the justice of that approach and one wonders whether, in the light of the ultimate determination of the House of Lords, the sheriff had he the foresight to see what they determined, might have followed a different route. What was determined, ultimately in the House of Lords, was that the increase in the value of the property was not matrimonial property. Since it only came into incorporeal existence after the relevant date, by definition, equally by definition it could not be matrimonial property. Thus far I agree with Professor Clive. However, I then have to say, with considerable regret, that the passage cited, insofar as it also refers to Wallis v Wallis, seems to me to be an incomplete statement of the law and that its being incomplete has contributed to the misunderstanding on the part of the pursuer's agent in the present case. As Lord Keith says at page 1352, " There is nothing in the Act capable of justifying a division between the parties of the increase in that net value which had taken place at the time of the proof." It seems clear to me that both in the Inner House and in the House of Lords, the point was very clearly made that the exercise through which a court must go in assessing the value of matrimonial property and then determining how it is to be fairly distributed is to be determined on the value of the property at the relevant date. In Wallis the state of equilibrium considered appropriate was achieved by a transfer of the defender's interest in the matrimonial home being matched by her receiving payment of a capital sum equating to half its value at the relevant date ignoring the increase in the value of the property. I have striven to follow Wallis v Wallis, which is, of course, binding upon me but, in any event, in my humble opinion, has the great merit of fixing a point for the valuation of matrimonial assets and, in any event, is consistent with the terms of the 1985 Act. If, as in the present case and Wallis, the outcome involves the transfer of the property, the equation germane to the transfer must proceed on the basis of the relevant date value of the property to be transferred. In practical terms, therefore, any increase in the value of that property between the relevant date and the date of proof is ignored. Professor Clive's proposition that the fundamental principle of the common law is unaffected by Wallis seems to me to be thus circumscribed in the context of distribution of matrimonial property. In any event, in the present case, since any claim for payment of a proportion of the increase in the value of matrimonial property could never fall within the confines of an order for capital payment, which can only be ordered in respect of matrimonial property, and there is no other relevant crave in this action, I cannot make any order which would take the increase into account.

The second argument is less controversial. Section 14(2)(j) of the Family Law (Scotland) Act, 1985 provides that an incidental order can include "an order as to the date from which any interest on any amount awarded shall run." As was determined in Geddes v Geddes 1993 S.C.L.R. 299, this provision confers a wide discretion on the court as to the date from which interest may run on any award made in an action for divorce provided the discretion is exercised in accordance with the requirements of section 8 i.e. that the award is justified by the principles set out in section 9 and is reasonable having regard to the resources of the parties. In the present case, the pursuer's agent submitted that an award of interest on the capital sum should be made in favour of the pursuer from, as I understood her argument, the relevant date. She made no suggestion as to the appropriate rate of interest. The argument proceeded on the basis that the defender had continued to occupy the former matrimonial home since the relevant date, thus depriving the pursuer of access to his money. It was observed in Geddes, and the comments are, accordingly, patently obiter, that "there may be circumstances where a party who has had the sole use or possession of an asset since the relevant date, the whole or part of the value of which is to be shared with the other party on divorce, should be required to pay interest as consideration for the use or possession which he has had between the relevant date and the date of decree." In the present case, no argument was presented to me to justify an award being made which would be in accordance with any section 9 principle or reasonable having regard to the resources of the parties. In any event, there are a number of factors in this case which, in my opinion, would make it unreasonable to exercise discretion in favour of the pursuer by making such an award. The first and most obvious is that these parties have already had one round of proof before the learned Sheriff Meston, whose judgment is lodged as production 5/2/2 and is dated 13^th. June, 1994. That was a proof in an action of division and sale relating to the former matrimonial home between the parties where the defender successfully resisted decree being granted relying on the terms of section 19 of the Matrimonial Homes (Family Protection)(Scotland) Act, 1981. As the learned sheriff puts it, the main function of the 1981 Act was to provide protection by way of occupancy rights for the non-entitled spouse. But a joint pro indiviso proprietor does not require such a right. To avoid putting a joint proprietor in a worse position than someone with no interest in the title, section 19 was enacted to put a discretionary barrier in the way of the otherwise unfettered right of either spouse to destroy the practical value of the right of occupation by insisting upon a sale. The discretion is to be exercised taking account of all the circumstances of the case, including whether there has been any offer of alternative accommodation as well as the matters referred to in section 3(3) (a) to (d) of the Act which, inter alia, requires the court to have regard to the needs of the children of the marriage. In the present case, Sheriff Meston, it seems to me with little difficulty or hesitation, reached the conclusion that, in the absence of any offer of reasonable alternative accommodation, the absence of any substantial resources available to the defender and her being responsible for the care and upbringing of the children, her occupation of the former matrimonial home should be continued and he dismissed the action, though he does not appear to have made any order as such under section 19. Nothing has materially changed since the learned sheriff's decision. The defender has no offer from the pursuer of alternative accommodation; she has only the most limited resources and she continues to care for the children. Furth

Given the arrangements I am otherwise ordering, equally I do not think it would be fair and reasonable, nor otherwise justified in principle, to make any order requiring the pursuer to recompense the defender for half the mortgage payments since the relevant date. She has had the benefit of the use of the property which will continue and has thus been spared the expense and inconvenience of moving elsewhere. She will also derive the benefit of the increase in the value of the property. The same considerations apply to the Legal & General endowment policy where the value of the property has increased significantly since the relevant date, but that is principally because the defender had the perspicacity to keep up payments of the premia.

The only remaining matter is what to do about the expenses of the cause and I shall assign a hearing to determine what should happen about these.