Scottish Sheriff Court Decisions

RUTH McDONALD MARTIN OR GRAY v. ANDREW DAVID GRAY [2001] ScotSC 13 (30th May, 2001)

JUDGMENT OF SHERIFF A.L. STEWART, Q.C.

in causa

RUTH McDONALD MARTIN OR GRAY

against

ANDREW DAVID GRAY

_______________________________

DUNDEE. 2001.

The sheriff, having resumed consideration of the cause FINDS IN FACT:-

1. The parties are husband and wife, having been married at Dundee on 26 November 1988.
2. The pursuer was continuously resident in Scotland for a period exceeding one year immediately prior to the raising of the action and was resident within this Sheriffdom for a period exceeding 40 days immediately prior thereto.
3. There are two children of the marriage: Christopher Gray, born on 13 October 1989; and Jonathan Gray, born on 28 September 1993.
4. After their marriage the parties lived in rented accommodation for approximately one year. They then bought a house in Cromarty Drive, Dundee. The deposit for this house was £6,000, which was paid by the pursuer. The pursuer had received the £6,000 as a gift from her mother, Mrs Ruth Martin. The balance of the purchase price was paid by a mortgage. The title to this house was taken in the joint names of the parties.
5. In 1996 the parties sold the house in Cromarty Drive and bought the house at 17 Clovis Duveau Drive, Dundee. Again the title was taken in joint names of the parties. This house cost £69,950 and was financed in part by a loan of £52,000 from Halifax plc. The balance of the purchase price was paid from the free proceeds of the sale of the house in Cromarty Drive.
6. The parties lived together with their children at 17 Clovis Duveau Drive until 27 May 1999. While they lived together both parties contributed towards the expenses of the household. The defender was working full time, while the pursuer was, for most of the period, working part time.
7. On 27 May 1999 the defender left the pursuer. Since then the parties have neither lived together nor had sexual intercourse with each other.
8. The defender has committed adultery with Bridget Tyson, designed in crave 6 of the initial writ.
9. There is no prospect of a reconciliation between the parties. The pursuer now seeks a divorce from the defender.
10. Since the parties separated the children of the marriage have lived with the pursuer. They both presently attend Invergowrie Primary School. In August 2001 Christopher will start to attend Harris Academy, Dundee.
11. The children are happy and well cared for. Christopher is keen on football and Jonathan attends karate classes. Both boys are doing well at school. Both have friends in the neighbourhood of Clovis Duveau Drive.
12. Christopher was badly affected by the defender's departure. Jonathan was less so.
13. The defender has made no attempt to communicate with the children for more than one year. He has made no direct financial contribution towards their maintenance. The pursuer has sought to obtain a financial contribution from him through the Child Support Agency. At the date of the proof the pursuer believed that the Child Support Agency had made an assessment in respect of the defender, but she has not yet received any payment.
14. The pursuer works part-time as a travel consultant. She works three days per week, her actual days of working varying from week to week. Her hours of work are from 8.45 a.m. until 6 p.m.. She is unwilling to work more than three days because she considers that to do so would be detrimental to her care of the children. This is a justifiable attitude on her part.
15. The pursuer's mother lives in Invergowrie, some one hundred yards from Invergowrie Primary School and some ten minutes' walk from 17 Clovis Duveau Drive. On the days when the pursuer is working she drops the children off at her mother's before going to work, and the children return there after school.
16. At the date of the parties' separation the matrimonial property consisted of: (a) the house at 17 Clovis Duveau Drive, the gross value of which was £74,000 and whose net value was £24,023.09; (b) the pursuer's employment pension with Thomas Cook Ltd valued at £453.41; (c) the defender's employment pension with Scottish Hydro Electric valued at £4,444; (d) the defender's pension with Scottish Amicable valued at £165; (e) three CIS joint life endowment policies being policy no. 9802789 with a surrender value of £858.80, policy no. 308263 with a surrender value of £315 and policy no. OB12667820 whose surrender value at the date of separation would have been negligible; (f) a balance in a bank account no. 0242750675 with the Woolwich of £3,578.74. The total net value of the matrimonial property was £33,838.04.
17. The gross value of 17 Clovis Duveau Drive at the date of the proof was still £74,000. The sum required to redeem the mortgage over the house was £54,892.60 as at 11 April 2001.
18. The house at 17 Clovis Duveau Drive has three bedrooms, a living room, a kitchen and bathroom. An additional room has been created by converting the garage attached to the house. This conversion had been instructed by the parties prior to their separation and was completed shortly thereafter. It was financed by an additional loan from Halifax plc.
19. Between 28 and 29 May 1999 the defender withdrew a total of £2,400 from Woolwich account no. 0242750675. On 1 June 1999 the pursuer withdrew £1,174.14 from said account.
20. At the date of the separation the defender was earning about £1,320 per month. The pursuer was earning about £500 per month and was receiving Child Benefit of about £98 every four weeks.
21. Following the separation the defender paid nothing to the pursuer until after the raising of the present action in July 1999.
22. On 20 July 1999 the pursuer was awarded interim aliment of £200 per month and the defender was further ordered to pay her £300 per month as an apportionment of the mortgage and insurance payments in respect of the house at 17 Clovis Duveau Drive. Initially the defender paid the whole £500 directly to the pursuer, but after a period he made payments in respect of the mortgage and insurance directly to Halifax plc.
23. On 11 January 2000 the award of interim aliment was reduced from £200 to £100. On that date the sheriff refused to grant a motion by the defender seeking to have reduced the £300 per month in respect of payments for the house. Following the refusal of this motion the defender agreed with Halifax plc that he would make no payments towards the mortgage for a period of three months. At the end of the three months' period the defender failed to reinstate his payments and the mortgage account fell into arrears.
24. In June 2000 the pursuer's solicitor caused an arrestment to be placed on the defender's bank account. This resulted in the pursuer's obtaining the sum of £1,154.23, which was sent to Halifax plc on 25 August 2000 as payment towards the arrears of mortgage.
25. On 29 August 2000 the interim payments previously ordered to be made by the defender were reduced to nil. This was because the defender had lost his job, having been dismissed as a result of having committed fraud. The defender gave an undertaking that he would notify the court immediately he regained employment.
26. At some date between the end of August and the end of November 2000 the defender obtained employment with Fort Dodge Animal Health Ltd.. He failed to inform the court of this fact. His net pay for the month of November 2000 was £1436.05 and his gross pay in that job up until 30 November 2000 amounted to £11,584.58.
27. On 12 December 2000 the defender was ordered to pay one half of the mortgage and insurance payments in respect of the house at 17 Clovis Duveau Drive and on 19 December, according to the terms of the interlocutor in furtherance of this order, he was ordered to pay £161.80 within three months. The defender has failed to make this payment and has paid nothing towards the mortgage since August 2000.
28. On 24 February 2001 the arrears of payment towards the mortgage amounted to £989.45. The pursuer borrowed money from her parents in order to make some payment towards these arrears.
29. The pursuer's parents are willing to give or lend money to the pursuer to clear the arrears of mortgage payment provided that the defender gains no benefit from such payments.
30. As at the date of the proof the monthly repayment due to Halifax plc in respect of the mortgage was approximately £414.
31. The pursuer has approached Halifax plc to ascertain their attitude to her becoming the sole owner of the house at 17 Clovis Duveau Drive. Halifax plc have informed the pursuer that before they can say whether they would agree to this, they must carry out certain investigations. Such investigations may take up to six months.
32. The pursuer earns approximately £550 per month. She receives £105 Child Benefit every four weeks. She also receives Working Families' Tax Credit. Her total monthly income is approximately £800.
33. The defender's present financial position has not been established.
34. The pursuer could not afford on her present salary to purchase a house of the same size and character as 17 Clovis Duveau Drive on the western side of Dundee.

FINDS IN FACT AND IN LAW:-

1. This court has jurisdiction.
2. The parties' marriage has broken down irretrievably.
3. It is unnecessary to make any order in terms of the Children (Scotland) Act 1995, section 11, in respect of the parties' children.
4. There are special circumstances justifying the fact that fair sharing of the matrimonial property between the parties does not require that the property should be shared equally between the parties.
5. These special circumstances are (a) the source of the £6,000 used to pay a deposit on the house in Cromarty Drive, Dundee in 1989; (b) the facts that the pursuer and the children have continued to live in the house at 17 Clovis Duveau Drive, Dundee since the defender's departure therefrom, that said house is reasonably close to the house of the pursuer's parents and to the school presently attended by both children, and that it would be disruptive to the children for them to move from that house; (c) the defender's past failures to obtemper orders of the court to make payments to the pursuer; (d) the defender's failure to honour an undertaking given by him to the court on 29 August 2000 to inform the court immediately he obtained employment; (e) the defender's failure to maintain payments towards the cost of the mortgage over the house at 17 Clovis Duveau Drive; (f) the defender's failure to make any direct financial contribution to the maintenance of the children.
6. Given these special circumstances it would be a fair sharing of the net value of the matrimonial property if the defender's interest in the house at 17 Clovis Duveau Drive and his interest in CIS endowment policies nos. 308263 and 9892789 were transferred to the pursuer and no further financial provision were to be made in favour of either party.

FINDS IN LAW:-

1. The marriage between the parties having broken down irretrievably, the pursuer is entitled to decree of divorce.
2. A fair sharing of the net value of the matrimonial property being that the defender's interest in the said house and his interest in the said policies should be transferred to the pursuer and the consent thereto of Halifax plc, the heritable creditors in respect of said house not yet having been obtained, the pursuer should be given an opportunity to obtain such consent.

ACCORDINGLY SUSTAINS the first plea-in-law for the pursuer; REPELS the third and fifth pleas-in-law for the defender; DIVORCES the pursuer from the defender and decerns; quoad ultra GRANTS the pursuer's motion no. 7/8 of process and in terms thereof continues the cause to the roll of 4 December 2001 within the Sheriff Court House, 6 West Bell Street, Dundee to enable the pursuer to obtain the consent of Halifax plc to the transfer to her of the defender's interest in 17 Clovis Duveau Drive, Dundee; RESERVES meantime all questions of expenses except so far as already disposed of.

This is an action of divorce. The merits are not contested, and I am satisfied that the pursuer has proved irretrievable breakdown of the marriage and is accordingly entitled to decree of divorce. There are two children of the marriage, who have been with the pursuer ever since the separation of the parties. The pursuer does not seek any order under section 11 of the Children (Scotland) Act 1995. The defender originally craved an order for contact, but he has departed from that and has, indeed, not seen the children for a considerable period. I am satisfied that there is no need for any order in terms of section 11.

The pursuer craves an order for the transfer to her of the whole of the defender's interest in the former matrimonial home and in certain associated insurance polices in terms of the Family Law (Scotland) Act 1985, section 8(1)(aa). She does not seek any other financial provision. The defender craves an order for sale of the former matrimonial home and for the court to make such order with regard to the free proceeds as seems proper. Failing such an order the defender craves payment of a capital sum of £18,000. The case went to proof before me only in respect of these craves.

The pursuer has not yet received the consent of Halifax plc, the heritable creditors, to any transfer to her of the defender's interest in the former matrimonial home. Her solicitor accordingly moved me, if I were in favour in principle of an order for such a transfer being made, to continue the case for six months in order to enable the consent to be obtained.

Most unusually in a case of this sort, there was no evidence led on behalf of the defender. Indeed the defender was not even present at the proof.

The pursuer gave evidence. There were two supporting witnesses: the pursuer's mother, Mrs Ruth Martin, and Gregor Lawson. The latter gave evidence only in respect of the merits, while Mrs Martin's evidence related to the welfare of the children and to financial matters. I have no hesitation in giving both the pursuer and Mrs Martin certificates of credibility. They were also both generally reliable, although, unsurprisingly, on occasions not entirely sure about dates or exact figures.

The pursuer's evidence painted a very clear picture of the defender's almost continuous reluctance to accept responsibility for making payments to the pursuer either for her maintenance or to finance the purchase of the former matrimonial home. I refer to findings in fact 18 to 24 above and need not repeat here what I have said there. Furthermore, the defender has made no direct payments of maintenance for the children. This matter is now in the hands of the Child Support Agency. The pursuer's evidence was that she understood that the Agency had made an assessment of the defender's obligations, but, as at the date of the proof, the pursuer had received no payment from the defender either directly or through the Agency.

The pursuer's evidence about the defender's financial intransigence was supported by that of her mother. As I have narrated in the findings in fact, the pursuer's parents have already given her financial assistance towards maintaining the mortgage payments. They are prepared to give her further assistance, but only provided that such assistance does not benefit the defender. This proviso is entirely understandable given the defender's conduct since the separation. Mrs Martin confirmed the pursuer's evidence to the effect that the pursuer's parents had given her £6,000 shortly after the parties' marriage and that the pursuer had used that money as a deposit for the first house which the parties bought.

I did not find the evidence about the state of the mortgage account with Halifax plc entirely satisfactory. It would have been helpful if an up to date written statement of the account had been produced rather than the pursuer being asked to rely on her memory. However, her evidence on this matter was not challenged in cross-examination, and it may be that the precise figures are of no great significance. The picture which clearly emerged was of the pursuer's constantly having to fight a rearguard action to prevent the lenders taking drastic steps with regard to the house.

As I have narrated in finding in fact 15, the total value of the matrimonial property at the relevant date was £33,838.04.

Miss Dommer referred me to the terms of various sections of the Family Law (Scotland) Act 1985. Section 8(1)(aa) was that which permitted the court to make a transfer order such as she sought. She referred me to section 9(1)(c) reminding me that since the separation the pursuer had been solely responsible for the maintenance of the children. Although the Child Support Agency was now concerned with obtaining money from the defender to maintain the children, it could well be the case that there would be difficulty in enforcing any order made by the Agency given the defender's past history. He had failed to obtemper court orders.

Miss Dommer referred me to section 10(6)(b) of the 1985 Act in connection with the evidence of the pursuer's using the gift of £6,000 from her parents as a deposit for the parties' first house.

She conceded that if the pursuer's crave for transfer were to be granted, this would result in an unequal division of he matrimonial property. However, she submitted that such an unequal division was just and equitable having regard to the defender's conduct. The defender would not receive nothing as he would retain his pension rights. Further, he had already received £2,400 from the parties' joint account with the Woolwich.

If, as sought by the defender, the former matrimonial home were sold, this would place the pursuer in a precarious position as she could not afford to buy a similar house in the same area. To have to move would disrupt the lives of the children.

Miss Dommer referred me to two cases: McNaught v McNaught (Sh. Ct) 1996 S.C.L.R. 151 (Notes) and Jacques v Jacques (H.L.) 1997 S.C.L.R. 108.

For practical purposes it would not be possible to seek an order for transfer at the date of granting decree of divorce. The lenders required to consider whether they were prepared to agree to the transfer, and they required up to six months for this purpose. In this connection Miss Dommer referred me to section 15(2) of the 1985 Act. She invited me to grant her motion, no. 7/8 of process which would have the effect of postponing any order for transfer until after the lenders had given their consent.

Mr Burke most helpfully began his submission by accepting that, if I were in favour of the pursuer on the matter of transfer of the defender's interest in the house, the procedure proposed by Miss Dommer was appropriate. However, he submitted that an order for transfer was not justified.

He reminded me under reference to section 10(1) of the 1985 Act that there was a presumption in favour of equal sharing. He accepted that £6,000 of the pursuer's money had been used for a deposit on the first house bought by the parties, but submitted that I should take account of the fact that this had occurred more than ten years ago and that the pursuer had had the benefit of living in that house and in the house at 17 Clovis Duveau Drive. While the parties had lived together the defender had been the primary supporter of the family. That lessened the impact of the £6,000.

Following the interlocutor of 20 July 1999 the defender had paid the pursuer a total of £500 per month. Although none of this was specifically allocated to the maintenance of the children, looked at practically the pursuer must have used some of it for that purpose.

If the order for transfer were granted the pursuer would receive property valued at more than £25,000. All that the defender would receive would be his own pension together with the £2,400 which he had already obtained from the joint bank account. This would not be a fair sharing of the matrimonial property. If unequal sharing were justified at all, it should certainly not be to that extent.

There was no justification for the suggestion that the Child Support Agency would be unable to enforce payments from the defender for the children's maintenance.

If the house were to be sold the pursuer would benefit from the proceeds of sale and the defender would also be able to receive a share of the capital. It was conceded that the sum of £18,000 craved as a capital payment was too high.

I am surprised that neither party referred me to the terms of section 11(7) of the 1985 Act. This provides:

I accept that "conduct" in the context of this subsection usually refers to the conduct of a party during the subsistence of the marriage, but I see no reason why it should not also refer to the conduct of a party affecting financial resources after the parties have separated. In the present case I am satisfied that the defender's conduct, as detailed in the findings in fact and in finding 5 in fact and law, is something which has adversely affected the pursuer's financial position and is therefore a factor of which I am entitled to take account in applying the principles set out in section 9 of the Act, especially the principle that the net value of the matrimonial property should be shared fairly between the parties.

It is clear that the pursuer has suffered much inconvenience - possibly even hardship - as a result of the defender's failures to fulfil his obligations. He has failed to obtemper orders of the court. The pursuer has been forced to resort to arrestment and to borrowing from her parents in order to obtain money to hold the heritable creditors at bay. The defender failed to honour an undertaking given by him to inform the court when he obtained work. By the time the defender was brought back to court following his resumption of work, he had quite obviously been working for several months. I am forced to the conclusion that he defender is a man who cannot be relied upon to fulfil any of his obligations, even when ordered to do so by a court or other authority. I am satisfied that the pursuer's fears that she will have the greatest difficulty in enforcing any order for payment by the Child Support Agency are entirely justified.

I heard no evidence to the effect that the defender would suffer financial hardship if his interest in the house were transferred to the pursuer. Indeed I heard no evidence about the defender's present financial resources. The pursuer's situation, on the contrary, was clearly set out. She is struggling and has to rely on her parents for assistance. In my opinion, it is entirely reasonable that she should be allowed to remain in the former matrimonial home if she can persuade the lenders to let her take over the mortgage. Although it is not a matter which directly concerns me, I should have thought that the lenders would have little difficulty in accepting the pursuer as a suitable borrower, if she obtains the backing of her parents as cautioners. Mrs Martin's evidence was that such backing would be forthcoming.

I am further persuaded that the order for transfer sought by the pursuer is justified and reasonable by the fact that to refuse it would result in disruption to the children of the marriage. I find it difficult to understand the defender's attitude towards these children. He appears to have removed himself entirely from their lives. Christopher, the elder child, was badly affected by the defender's departure. I do not consider that further upset should be caused to either boy if it can possibly be avoided.

If the defender's interest in the house and the relative insurance polices is transferred to the pursuer, she will receive assets to a value (as assessed at the relevant date) of £25,650.30. To this must be added the £1,174.14 which the pursuer withdrew from the joint bank account in July 1999. This makes a total of £26,824.44. The defender's share of the net matrimonial property will thus amount to £7,013.60. In my opinion, for the reasons which I have endeavoured to state above, such an unequal sharing is in all the circumstances fair and reasonable. It is worth pointing out too that because of the increased amount of the loan over the former matrimonial home since the date of separation, its net value is now only £19,107.40 as opposed to £24,023.09 at the relevant date. Its actual value to the pursuer is thus substantially reduced.

Parties were agreed that all outstanding questions of expenses should be reserved, and I have done this.