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Cruickshank v. Dehvasati [2003] ScotSC 32 (25 February 2003) SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT ELGIN

A119D/99

		JUDGEMENT of SHERIFF PRINCIPAL SIR STEPHEN S T YOUNG Bt QC
		in the cause
		MRS SHEENA MARGARET CRUICKSHANK or ZAKERI DEHVASATI
		Pursuer and Respondent
		against
		GHOLAM HOSSEIN ZAKERI DEHVASATI
		Defender and Appellant

Act: Mr Doohan, advocate, instructed by Messrs Wink & Mackenzie, Elgin

Alt: Party

Elgin: 25^th February 2003

The Sheriff Principal, having resumed consideration of the cause, refuses the motion of the defender and appellant made at the bar to be allowed to amend his defences in terms of his minute of amendment, no. 28 of process; refuses also the appeal and adheres to the interlocutor of the sheriff dated 11^th March 2002 subject to the following amendments:

In finding in law 2 delete "Section 9(1)(b) and (c)" and substitute "section 9" and insert after "Family Law (Scotland) Act 1985" the words "and reasonable having regard to the resources of the parties".

In line 6 on page 9 (which begins with the word "SUSTAINS" delete "and second pleas-in-law" and substitute "plea in law".

In line 13 on page 9 delete "within two months of the date hereof" and substitute "not later than 30^th April 2003";

reserves meantime the question of expenses and appoints parties to be heard thereon at Aberdeen Sheriff Court on 2003 at .

Note

In this anxious case the pursuer and respondent sought decree of divorce against the defender and appellant and an order for the transfer by him to her of his whole right, title and interest in the former matrimonial home at Aberlour. In response the defender craved an order for the sale of this property and for the disposal of the net free proceeds of sale as the court deemed fit. After proof the sheriff by interlocutor dated 11^th March 2002 granted decree of divorce and decree also for the transfer of the matrimonial home as sought by the pursuer. He therefore refused the defender's crave.

In support of his conclusion the sheriff made a total of forty two findings in fact. He found in fact and in law that 27^th February 1993 was the relevant date for the purposes of the Family Law (Scotland) Act 1985 ("the Act"). He made three findings in law. The first related to the merits of the action which were not in dispute, and the second and third were as follows:

An order for the transfer to the pursuer of the defender's whole right, title and interest in the said former matrimonial home and the furniture and plenishings therein being justified in terms of section 9(1)(b) and (c) of the Family Law (Scotland) Act 1985, an order for transfer of title should be granted in terms of crave 2 for the pursuer.

The order sought by the defender being neither justified nor reasonable should not be granted as craved by him.

The salient facts as disclosed by the sheriff's findings in fact were as follows. The pursuer is aged 47. She resides in the former matrimonial home and is qualified as a chiropodist. The defender is aged 53. He resides at an address in Aberdeen and is unemployed. They were married on 29^th July 1978 and there are four children of the marriage, namely Laila (23), Leisa (20), Sarah (17) and Pery (14). The pursuer was awarded custody of all four girls on
4^th February 1994. The parties had earlier separated on 27^th February 1993 and they have not lived together since.

From the date of the marriage in 1978 until 1985 the parties lived with the pursuer's mother rent free. The pursuer was employed locally as a chiropodist while the defender was employed as an officer in the Iranian Merchant Navy. As a result of being able to stay rent free with the pursuer's mother, they were able to save towards the purchase of the former matrimonial home which was bought in 1985 for £29,500. The title to the property was taken in the joint names of the parties. They did not need a mortgage to buy the house but the pursuer's mother lent her £3,000 towards the purchase price. This loan was repaid by the pursuer in about 1998 from funds which she obtained from cashing in a life assurance policy which she had taken out in about 1978. Before the separation various home improvements were carried out at the matrimonial home, some of which were paid for jointly by the parties.

The defender's tours of duty lasted between six and nine months. It was not his practice to send money home while he was away, but rather to bring home a sum of money with him. He would bring home with him sums of money averaging approximately £1,500. At this time the parties had a joint bank account with the Bank of Scotland. The defender also brought home various gifts for the pursuer and the children. The pursuer herself continued working during most of the marriage in order to contribute towards the support of herself and the children. Her mother helped with child care.

After a period of leave in the United Kingdom, the defender was called for duty by his employers on 15^th December 1992. But he refused to travel back to Iran. Thereafter disciplinary action was taken against him, in consequence whereof he was left with no pension rights whatsoever. Since the separation of the parties on 27^th February 1993 he has not contributed to the upkeep of the former matrimonial home nor has he paid for any home maintenance or home improvements nor has he paid any aliment in respect of the pursuer or the four children.

The pursuer is employed part-time and in the tax year to 5^th April 2001 her gross pay amounted to £10,916.03. With effect from 30^th January 2001 she was entitled to Working Families Tax Credit on behalf of the family at the rate of £48.72 per week and she was also in receipt of Child Benefit in the sum of £26.90 per week. Her mother gives her financial assistance when required as well as assisting with child care after school. Had she not had the children to look after, the pursuer would have been able to seek full-time employment. She has a personal retirement plan which had a surrender value as at 27^th February 1993 of £6,122.53 and a separate life assurance policy which had a surrender value as at the same date of £231.30.

The defender has remained in Scotland since the separation. Following the loss of his job he studied for and obtained a B.Eng. and a M.Sc. degree in Civil Engineering. Despite these qualifications he has been unable to obtain employment. He incurred debts to the Student Loans Company of £5,020.52 and to the Bank of Scotland for £5,500, both in respect of study loans. The former loan is not repayable until he has earnings in excess of £1,482 per month. But the latter loan is now repayable and the defender is under pressure from the bank to make repayments. His sole income is Job Seeker's Allowance of £106 per fortnight. He has the tenancy of a council flat for which the local authority pays the rent. He cannot afford to go to Iran to look for work and in any event there is high unemployment there, even among University graduates. At the date of separation he owned a property in Iran which it appears he had purchased from his mother in 1992 for a sum of money, the Sterling equivalent of which was £6,000 or thereby. That was its current market value at the relevant date (see page 15) and when the sheriff issued his judgement on 11^th March 2002. The defender suffers from long-standing stress induced anxiety associated with a degree of depression and difficulty in making satisfactory relationships with others. He also suffers from a degree of hiatus hernia, tinnitus and deafness.

As at the relevant date the former matrimonial home had a value of between £55,000 and £58,000. As at January 2001 the property had a value of between £58,000 and £64,000. The eldest daughter Laila works away from home but often returns to visit the pursuer and her sisters. The next child Leisa is a student who lives away from home during the term time but stays at home during the holidays. On 11^th March 2002 the two youngest daughters were still at school. The pursuer's mother lives nearby but, if the former matrimonial home were to be sold, it would not be a realistic proposition for the pursuer and the children to go and live with the pursuer's mother. The children want to remain living at the former matrimonial home and would be very upset by its sale. Finally, the sheriff found that the defender did not want to have the former matrimonial home sold at present or the children put out of the house against their wishes.

It appears from the pursuer's second plea-in-law that the legal basis upon which she sought an order for the transfer to her of the defender's interest in the former matrimonial home was that such an order would be justified in terms of section 9(1)(b) and (c) of the Act. But towards the end of article 4 of the condescendence there is an averment to the effect that the order was justified in terms of section 9(1)(a), (b) and (c), and it appears from his summary of the submissions of parties' solicitors that all three principles in section 9(1)(a), (b) and (c) were canvassed before the sheriff. In his judgement he then considered these at pages 15 to 17 where he said:

In deciding the appropriate orders to make for financial provision, regard must be had, first, to the principles set out in Section 9 of the 1985 Act. Section 9(1)(a) is concerned with the net matrimonial property, the net value of which should be shared "fairly". In terms of Section 1(2) the net value is the value "at the relevant date", which in this case is agreed to be 27 February 1993. The relevant matrimonial assets may be summarised as was done by (the defender's solicitor), as comprising the matrimonial home at Lilybank, Aberlour; the retirement plan and assurance policy of the Pursuer; the house in Iran; and the articles listed in paragraph 6 of the Joint Minute (no 24 of process) which also helpfully details certain values. (In regard to the items listed in paragraph 6, it should however be noted that I accepted the Pursuer's evidence that the 6 gold bangles were returned to the Defender by the Pursuer prior to the separation of parties - see finding in fact number 36).

By virtue of Section 10(1), the net value of the matrimonial property is shared fairly when it is shared "equally" or in such other proportions as are justified by special circumstances. So in the absence of special circumstances, the calculation of fair sharing would simply involve the splitting into two equal shares of the total net value at the relevant date. Guidance on what constitutes "special circumstances" is found in Section 10(6)(a) to (e), where it is important to note that those sub-sections are expressly stated to be "without prejudice to the generality of the words", and are therefore not exhaustive.

So far as the provisions of Section 10(6)(b), - "the source of the funds" - are concerned, regard must be had in my view to the loan of £3,000 from (the pursuer's mother) towards the purchase of Lilybank - which loan has been repaid by the Pursuer through her efforts alone. The provisions of Section 10(6)(d) regarding the nature of the matrimonial property and the use made of it are also relevant here.

In regard to the provisions of Section 9(1)(b), with which fall to be considered the provisions of Section 11(1) and (2), it is to my mind pertinent in this context to consider the Pursuer's roles throughout the marriage as a breadwinner, initially jointly, but latterly on her own; as a housekeeper, latterly in sole charge of maintenance and upkeep of the matrimonial home; and as mother of the four children of the marriage. I therefore hold that "fair account" must be taken of the economic advantage derived therefrom by the Defender, including the opportunity thereby to acquire the property in Iran, and of the economic disadvantage suffered by the Pursuer in the interests of the Defender and the family.

Although Leisa and Sarah are now over 16 (Sarah only just so), Pery will be under that age for some time and so the provisions of Section 9(1)(c) remain relevant.

As (the defender's solicitor) rightly reminded the Court, in making any order the Court has not only to make an order justified by the principles set out in Section 9 of the Act, but must also make an order that is "reasonable having regard to the resources of the parties" (Section 8(2)(b)). When the two-fold test is applied to the present case, and mindful of the authorities cited supra, I have come to the view that a fair division of the matrimonial property is one that will give the Pursuer sole title to Lilybank, where she can live indefinitely and provide a home for the children of the marriage for so long as they wish. (That latter aspect, at least, is in conformity with the Defender's expressed preference at the end of his own evidence.) Given the Pursuer's age, current income, and earning prospects, she should also keep her retirement plan and assurance policy. The Defender for his part will retain ownership of the property in Iran. For completeness, I should perhaps add that I was not persuaded of the merits of a via media such as propounded by (the defender's solicitor): it is now time for a clean break, to enable all concerned to put the past behind them and to move on.

In his interlocutor dated 11^th March 2002 the sheriff reserved the question of expenses. At a subsequent hearing on 20^th March 2002 he found the defender liable to the pursuer in expenses.

On 3^rd April 2002 a note of appeal was lodged on behalf of the defender by his solicitors in which it was stated that he appealed on the following grounds:

Having regard to the findings in fact, the orders made by the sheriff are not justified by the principles of section 9 of the Family Law (Scotland) Act 1985.

The sheriff has given inadequate reasons for finding that the matrimonial property should be shared in such unequal proportions as he determined.

The sheriff failed to give any reasons for his assertion that the orders made by him were reasonable having regard to the resources of the parties. Having regard to the defender's financial circumstances, the orders made are patently unreasonable having regard to the parties' resources.

On the same day the defender himself lodged a note of appeal which extended to ten pages and had attached to it various copy letters.

At the hearing of the appeal the pursuer was represented by counsel. The defender had previously been granted legal aid for the appeal and had been represented by the same firm of solicitors as had represented him at the proof. But on 22nd November 2002 a letter was received by the court from the firm indicating that they were withdrawing from acting for the defender. No reason was stated (and none had to be), but one has only to look at what the defender has said about the individual solicitor who conducted the proof on his behalf in his own note of appeal and in some of the letters which he has sent to the court since the appeal process was set in motion to understand why this solicitor may have decided that his firm could no longer act for the defender and why other firms may have been reluctant to act for him. At all events a peremptory diet was fixed for 17^th December 2002 when the defender appeared in person and indicated that he wished to insist in the appeal.

The defender's own note of appeal and the letters to which I have referred have been replete with allegations of crimes against humanity, ethnic cleansing, neo-Nazi activities, racism, psychological torture, criminal conspiracies, fabrication of documents and the like. When he came to address me at the hearing of the appeal he carried on in the same vein so that it was at first very difficult to make any sense of what he was saying, and in particular to understand why he maintained that the sheriff had erred in pronouncing decree as he had. This I found most uncomfortable, not least because it was plain from the fact that he had been granted legal aid that there must have been something to be said in support of his appeal. Relief came when he referred to an opinion which had been prepared by counsel in support of his legal aid application. With encouragement from myself, and with the agreement of counsel for the pursuer, the defender proceeded to read this opinion out and to adopt as his contentions the reasons advanced by counsel for suggesting that the sheriff had erred. In short, these were to the effect that (1) if and to the extent that the sheriff had relied on the principle set out in section 9(1)(a) of the Act, he had erred in finding that there were special circumstances to justify a departure from the principle of equal sharing, (2) the sheriff had erred in relying on the principle set out in section 9(1)(b) to justify the order which he had made for the transfer of the defender's interest in the former matrimonial home to the pursuer, (3) the sheriff had likewise erred in relying on the principle set out in section 9(1)(c) of the Act, and (4) the sheriff had erred in holding that such an order would be reasonable having regard to the resources of the parties - see section 8(2)(b) of the Act.

It appears that the defender's application for legal aid for the appeal was initially refused, and was only granted after a note by the same counsel as had prepared the opinion was submitted to the Scottish Legal Aid Board. This note, which the defender also read, essentially summarised what had been said in the earlier opinion. The defender then sought to challenge a number of the findings in fact which the sheriff had made, and he invited me to pronounce decree ordering the local authority to offer him employment as a civil engineer so that he could support his children financially. He repeated several times that he wanted his half-share of the former matrimonial home as a security for himself and his children, or words to that effect. At the conclusion of his submissions I asked him to specify exactly what it was that he wanted to be done in place of the order made by the sheriff. He replied that his first choice would be that an order should be made to the effect that the matrimonial home should be sold when the youngest child Pery attained the age of 18 (on 16^th November 2006) and the free proceeds of sale divided equally between the pursuer and himself. He then said that his second preference would be for an order for the transfer by him to the pursuer of his interest in the property in exchange of payment by her to him of one half of the then value of the property. This order, he suggested, would take effect when all four daughters were married or when they had all obtained employment or when Pery was 18. But after some further discussion he said that he did not after all seek such an order since the pursuer would be unable to afford a mortgage to borrow the funds required to pay him an amount equal to his half share of the value of the property. He acknowledged that to insist upon the pursuer borrowing money for this purpose would place an unacceptable burden on his family - and in this context it will be observed that there is an averment in his answer 5 on page 16 of the amended closed record (no. 23 of process) to the effect that it "is believed that the pursuer is not in a position to acquire the defender's interest in the said property for value". In the result the defender reverted to his first choice as being the only realistic option in the circumstances.

In response, counsel for the pursuer submitted that the sheriff's decision should be upheld. He reminded me of the extent of the discretion conferred upon the court of first instance in cases of this kind, and in this context he referred to Little v Little 1990 SLT 785, Peacock v Peacock 1993 SC 88, Jacques v Jacques 1995 SC 327 and 1997 SC (HL) 20, Cooper v Cooper 1989 SCLR 347, Cunniff v Cunniff 1992 SLT 992, Wallis v Wallis 1992 SC 455 and 1993 SC (HL) 49 and Jackson v Jackson 1999 Fam LR 108. He submitted that the sheriff had delivered a carefully reasoned judgement in the course of which he had applied the requisite legal principles to the facts found by him. He urged me not to follow the middle way proposed by the defender's solicitor to the sheriff and by the defender himself in the appeal. This had rightly been rejected by the sheriff and, if implemented, would add to the distress of the pursuer. In summary, said counsel, the sheriff had correctly applied the principles to be found in section 9(1)(a), (b) and (c) of the Act and all three grounds of appeal should be rejected.

It is not altogether clear from the excerpt from his judgement which I have quoted at paragraph [10] above, whether or to what extent the sheriff relied upon the principle set out in section 9(1)(a) of the Act in deciding to order the transfer of the defender's interest in the former matrimonial home to the pursuer. But it is clear from his second finding in law that he did rely on the principles set out in section 9(1)(b) and (c) and, in so doing, he fell in my respectful opinion into error.

Section 9(1)(b) sets out the principle that 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. In section 9(2) there are definitions of the expressions "economic advantage", "economic disadvantage" and "contributions" and then in section 11(2) it is provided that for the purposes of section 9(1)(b) the court shall have regard to the extent to which (a) the economic advantages or disadvantages sustained by either party have been balanced by the economic advantages or disadvantages sustained by the other party, and (b) any resulting imbalance has been or will be corrected by a sharing of the value of the matrimonial property or otherwise. When these provisions are borne in mind, it may I think be seen that in the paragraph in his judgement (at the foot of page 16) in which he considers section 9(1)(b) the sheriff appears to have overlooked various points. In particular he appears to have ignored both (a) the financial contributions made by the defender while he was in employment and before the parties' separation, and (b) the fact that the house in Iran constituted matrimonial property, just as did the pursuer's personal retirement plan and life assurance policy. Moreover, I cannot see any indication here that the sheriff attempted to carry out the balancing exercise desiderated by section 11(2).

Section 9(1)(c) sets out the principle that any economic burden of caring, after divorce, for a child of the marriage under the age of 16 years should be shared fairly between the parties. This is to be read with section 11(3) which provides that for the purposes of section 9(1)(c) the court shall have regard to (a) any decree or arrangement for aliment for the child, (b) any expenditure or loss of earning capacity caused by the need to care for the child, (c) the need to provide suitable accommodation for the child, (d) the age and health of the child, (e) the educational, financial and other circumstances of the child, (f) the availability and cost of suitable child-care facilities or services, (g) the needs and resources of the parties, and (h) all the other circumstances of the case. It will be seen that the sheriff considered section 9(1)(c) in a single sentence of his judgement (at the top of page 17), and it is very hard to see in what he said there how he maybe supposed to have had regard to the factors outlined in section 11(3) or to have identified how an order for the transfer of the defender's interest in the former matrimonial home to the pursuer would result in a fair sharing of the economic burden of caring after divorce for the parties' youngest child Pery.

It follows from what I have said that the question whether an order should be made in terms of either the pursuer's second crave or the defender's first crave is at large on appeal. It is common in cases of this kind to find that there is a degree of overlap between the circumstances which, on the one hand, may support the application of the principles set out in either section 9(1)(b) or (c) and, on the other hand, may constitute special circumstances within the meaning of section 10(6) so as to justify a departure from the principle in section 9(1)(a), read with section 10(1), of equal sharing of the net value of the matrimonial property. It is important therefore always to keep firmly in mind which of the three principles is being sought to be applied and not to allow confusion between them. For present purposes I consider that the appropriate principle to be applied is that set out in section 9(1)(a). In saying this I am conscious that this is not the principle founded on in the pursuer's second plea-in-law. But I have already outlined how the applicability of section 9(1)(a) was presented to, and considered by, the sheriff and it does not appear from the opinion of counsel in support of the defender's legal aid application, or counsel's subsequent note, that it was to be suggested that the sheriff ought not to have considered section 9(1)(a) at all. The defender himself made no such suggestion and besides, as was indicated by Lord McCluskey in Cunniff v Cunniff at page 994, in these cases the court always has the duty to consider section 9(1)(a).

Before turning to consider section 9(1)(a) in detail, I may perhaps deal with three matters which were raised by the defender in the course of his submissions. In the first place, as indicated, he challenged a number of the findings in fact made by the sheriff. The difficulty here is that the notes of evidence heard at the proof were not extended for the purposes of the appeal and accordingly there is no basis upon which I can review the sheriff's findings in fact on appeal. It was up to the defender, if he wished to challenge these findings in fact, to arrange for the notes of evidence to be extended.

Secondly, it will be recalled that the defender submitted that I should order the local authority to offer him employment. The short answer to this is that I have no power to pronounce such an order.

The defender's third point, which was no doubt prompted by some comments made by counsel in his opinion, was to the effect that the sheriff, in identifying the items of matrimonial property at the relevant date, had omitted three such items, namely the furniture and plenishings in the matrimonial home, the balance on the parties' joint bank account and the pursuer's interest in the life assurance policy which she took out in about 1978 and which she encashed in order to repay the loan of £3,000 from her mother. A number of points may be made here. In the first place, none of these three items featured in the joint minute of admissions which was signed by the parties' respective solicitors before the proof and in which agreement was reached in relation to various items of matrimonial property. Secondly, it is admitted on record by the defender that the pursuer required the furniture and plenishings of the matrimonial home in order to continue to provide a home for the children. The defender himself did not suggest that any particular value should be attributed to the furniture and plenishings, and in the circumstances it seems reasonable simply to ignore them. As for the bank account, the sheriff mentioned this briefly in his finding in fact 12. But he did not say (quite possibly because there was no evidence on the point) what the balance, credit or debit, was on the account at the relevant date or what happened thereafter to that balance. Here too the defender did not himself volunteer any details, so again it seems to me to be reasonable to ignore this item. As for the life assurance policy, this is referred to by the sheriff in his finding in fact 9 where he describes how the policy was encashed in order to repay the loan of £3,000 (which of course was itself a matrimonial debt). Although the sheriff does not say so, the impression given is that after repayment of the loan there was no surplus retained by the pursuer out of the proceeds of the policy, and the defender did not suggest that there had been any such surplus, let alone the amount thereof. Again therefore I think that this life assurance policy should simply be ignored.

Section 9(1)(a) of the Act provides that the net value of the matrimonial property should be shared fairly between the parties to the marriage. Section 10(1) provides that in applying the principle set out in section 9(1)(a) 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. Section 10(6) provides that in section 10(1) "special circumstances", without prejudice to the generality of the words, may include a number of factors which are listed in five sub-paragraphs (a) to (e). For present purposes it is necessary to notice in particular sub-paragraph (d) which refers to "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". As the use in section 10(6) of the words "without prejudice to the generality of the words" implies, the special circumstances in any particular case may include other circumstances apart from those listed in sub-paragraphs (a) to (e). And as was pointed out by Lord Clyde in the House of Lords in Jacques v Jacques at pages 24/5, there are two questions to be considered in this context, namely (1) whether a departure from equality is justified by the special circumstances, and (2) if so, what should be the proper apportionment between the parties of the net value of the matrimonial property in light of these special circumstances.

Apart from the matrimonial home there appear to have been four items of matrimonial property identified as at the relevant date, namely (1) the pursuer's personal retirement plan, the surrender value of which was £6,122.53, (2) the pursuer's life assurance policy (not the one taken out in about 1978 and surrendered in 1998) which had a surrender value of £231.30, (3) the defender's property in Iran valued at about £6,000 and (4) various items of jewellery. The latter are referred to in the sheriff's finding in fact 36 where it is said that the defender made a gift to the pursuer of six gold bangles and a white gold diamond set heart pendant which had a value as at the relevant date of £580. The pursuer returned the six gold bangles to the defender prior to their separation, and she has also returned to him her white gold wedding ring. It is not clear how the sum of £580 is to be apportioned between the six gold bangles returned to the defender and the pendant apparently retained by the pursuer. But looking at these four items of property overall, I think that it is reasonable to assume that the value of those which belonged to, or were retained by, the pursuer was more or less equal to the value of those which belonged to, or were retained by, the defender. In other words, these items of property appear to have been shared equally, and hence fairly, between the parties so that no further notice need be taken of them.

There remains the matrimonial home. This was bought in 1985 for £29,500. Of this sum, £3,000 was lent by the pursuer's mother and the balance was evidently saved by both parties out of their earnings between the date of the marriage in 1978 and 1985. At the relevant date the value of the property was between £55,000 and £58,000, and as at January 2001 its value was between £58,000 and £64,000. The title to the property was taken in joint names so that, if no order were to be made by the court, either party would be free to insist upon a sale of the property and a division of the free proceeds equally between them. Such an outcome would of course be consistent with the presumption in favour of equal sharing - see Lord Jauncey of Tullichettle in Jacques v Jacques at page 22 - to be found in section 10(1). Indeed, quite apart from this sub-section, had it been appropriate to consider only the circumstances which obtained before and at the relevant date, it would I think have been very difficult to maintain that anything other than an equal sharing of the value of the matrimonial home would have been fair to both parties.

The difficulty for the defender is that, since the relevant date, the circumstances have changed very significantly. When the parties separated in February 1993 the pursuer remained in the matrimonial home along with the parties' four daughters whose ages then ranged between 13 and 4. By the time the sheriff came to issue his judgement on 11^th March 2002 the eldest daughter Laila was working away from home, but often returned to visit her mother and sisters. It is not clear when she moved out of the home but, having been aged 13 when her parents separated, it may be surmised that she stayed at home for several years before leaving. The second child Leisa had just had her 10^th birthday when the parties separated, so that she too must have remained at home for five or six years at least before going to college. She lives away from home during term time but returns during the holidays. As at 11^th March 2002 she had two more years of college ahead of her. The sheriff found, not surprisingly, that the pursuer still had to support her, though the extent of this support is not stated. Finally there are the two youngest daughters Sarah and Pery who were aged 7 and 4 respectively at the separation and who were still at school on 11^th March 2002 - by which time they were aged 16 and 13 respectively. Thus, whatever Sarah's plans, it is plain that Pery at least still has a few more years at home in the care of the pursuer.

Following the separation the defender studied for and obtained degrees in Civil Engineering. Despite these qualifications he has been unable to obtain employment. The result has been that throughout the period between the relevant date and 11^th March 2002 he contributed nothing towards the maintenance of the matrimonial home or his four daughters. The entire burden here fell upon the pursuer supported by her mother who has given her financial assistance when required and assisted also with child care after school. As at 11^th March 2002 the pursuer was employed part-time and, as the sheriff observes, had she not had the children to look after she would have been able to seek full-time employment. Quite apart from the financial demands made upon her, it does not require much imagination to appreciate how difficult it must have been for the pursuer in the years following the separation, even with her mother's assistance, to continue working and at the same time care on her own for the four girls.

In his finding in fact 23 the sheriff records that, inter alia, the pursuer has to pay Council Tax of £740 per annum and insurance for the matrimonial home at the rate of approximately £18 per month. She also has a substantial electricity bill. There is no finding about the financial cost of supporting the four girls, but it would be idle to pretend that the expense of feeding, clothing and entertaining initially four, then three and finally two daughters on a full-time basis over the years in question would have been anything other than substantial. And of course in the case of Pery at least this support will have to continue for several more years, and there is no realistic prospect that the defender will be able to help out in this respect.

In addition to the day-to-day expense of maintaining the matrimonial home and the four girls - and of course also herself - the pursuer in 1995 had to install double glazing in the matrimonial home because of the state of the windows. The sheriff refers to this in his finding in fact 21 where he records that the pursuer qualified for a repairs grant of £2,750 from the local authority and that, in order to pay the remainder of the cost, she took out a loan in the sum of £7,065, repayable at the rate of £158.75 per month over six years. Although the sheriff does not say so in terms, a simple arithmetical calculation discloses that the total sum so paid by the pursuer between 1995 and 2001 was £11,430.

At best for the defender the value of the matrimonial home as at January 2001 was £64,000, so that his half share then would have been worth £32,000. It would be reasonable to deduct from this the sum of £5,715, being one half of the sum of £11,430 paid by the pursuer towards the loan for the double glazing. This leaves £26,285 as the sum to which he would have been entitled had the matrimonial home been sold in January 2001. By then the parties had been separated for almost eight years, and £26,285 averaged over eight years comes to £3,285.63 per year or £63.19 per week. I have already observed that it is not known exactly how much the pursuer had to spend on a day-to-day basis to maintain the matrimonial home and the four girls during those eight years. But on any view I should expect the total sum so expended by her to have considerably exceeded the sum of £26,285 (and in this context I do not overlook the fact that the pursuer as well as the defender had an obligation to support their four daughters financially and maintain the matrimonial home). As at 11^th March 2002 the Council Tax due in respect of the property and the insurance thereof alone amounted to almost £1,000 per year. And of course, while it is not known what the current value of the matrimonial home is, it is certain that since January 2001 the pursuer has continued to be responsible for the maintenance of the matrimonial home and at least two of the girls, and her responsibility for Pery in particular will continue for several more years yet.

In all these circumstances I am of the opinion that a departure from the presumption of equal sharing of the value of the matrimonial home would be justified. The defender suggested that, in addition to the house itself, the property included some land which could be sold separately. But the sheriff has made no finding in fact about this and the possibility of some sort of division along these lines must therefore be ignored. In any event, having regard to the figures which I have set out above and the circumstances generally, I think that an order for the transfer by the defender to the pursuer of the whole of his interest in the matrimonial home would be amply justified by the principle set out in section 9(1)(a) as qualified by section 10(1) and (6).

It follows from what I have said that I do not think that an order for the sale of the property as sought by the defender would be appropriate, even if this were to be postponed until Pery's 18^th birthday. Indeed, had I otherwise been with the defender on the issue of the division of the net value of the matrimonial property, I think that I should still have hesitated long and hard before ordering a postponed sale of the matrimonial home. I say this in particular in light of the sheriff's findings in fact 41 and 42 to the effect that the children would be very upset by the sale of their home and wanted to remain living there and that the defender did not want to have the property sold at present or the children put out of the house against their wishes. As I have already indicated, in the course of his submissions the defender was somewhat ambivalent about when he would want the property to be sold. Pery's 18^th birthday was the earliest possible date which he suggested, with the date by which all four daughters were married or had secured employment being alternative possibilities. In truth I cannot think that it would have been appropriate or fair to the pursuer or the girls to set a date so far ahead for the sale of the property. And in any event, for the reasons already stated, the issue does not arise since I think that the defender's interest in the property should be transferred now to the pursuer.

There remains the question whether an order to this effect would be reasonable having regard to the resources of the parties. I have already referred to the pursuer's income from her part-time employment, her personal retirement plan and her life assurance policy - see the sheriff's findings in fact 22, 25 and 26. The defender's financial position is certainly parlous given that his sole income is Job Seeker's Allowance of £106 per fortnight, that he has debts of the order of £10,500 and that his only assets appear to be the property in Iran and some items of jewellery - see findings in fact 28, 29, 30, 33 and 36. Thus, if he were to transfer his half share of the matrimonial home to the pursuer, he would be rendered absolutely insolvent. In Cunniff v Cunniff at pages 1000/1 Lord Marnoch observed that "it must be a fairly extreme and unusual result under the 1985 Act that one party is left absolutely insolvent following an unequal division of the matrimonial property". I cannot pretend that in the present case I think that it is a happy outcome for the defender that he should find himself absolutely insolvent at the age of 53 and after almost twenty five years of marriage, and with apparently no immediate prospect of securing any form of employment. But even if I had acceded to his submission that an order should be made for the sale of the matrimonial home, he would not have received any part of the proceeds before 16^th November 2006 at the earliest, and quite possibly much later - by which time it may be that he could have secured a discharge following sequestration of his estate. Besides, I have to look at the matter from the point of view of the pursuer too, and when this is done and account is taken of all the circumstances which I have outlined above, it can I think be said that, hard as my decision may be on the defender, it is nonetheless reasonable having regard to his and the pursuer's resources.

Shortly before the appeal hearing the defender lodged a minute of amendment which has been marked as no. 28 of process. In terms of this he sought in particular to add four new craves to his defences. At the appeal itself I understood him to move to be allowed to amend his defences accordingly. But what he eventually asked me to do to dispose of the appeal, namely to order the sale of the matrimonial home at the earliest on Pery's 18^th birthday and the division equally between the parties of the free proceeds of sale, did not correspond to any of these four new proposed craves. In the circumstances I have thought it right simply to refuse to allow the amendment.

I should perhaps also mention that on 23^rd January 2003 there was received at the court from the defender what appeared to be a note of amended grounds of appeal. This has been marked as no. 29 of process. In the event the defender did not refer to this note during the hearing of the appeal, and in particular he made no motion to be allowed to amend his grounds of appeal late - see rule 31.4(5) and (7).

At the invitation of counsel for the pursuer I have reserved the question of expenses for a further hearing. Having regard to the defender's medical condition, I think that this should take place at Aberdeen Sheriff Court.