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Murray v. Scott [2005] ScotSC 65 (05 October 2005)

F94/03

JUDGEMENT OF SHERIFF W S S IRELAND

in the cause

SHERELDENE LYNN MURRAY or SCOTT

Pursuer;

against

CHRISTOPHER SCOTT

Defender:

________________

Act : McCaffrey

Alt : Wilson

KILMARNOCK : 5 October 2005
FINDINGS IN FACT

The Sheriff, having resumed consideration of the cause, Finds the following facts admitted or proved:

The Pursuer is Shereldene Lynn Murray or Scott, residing at 4 Prospecthill Road, Saltcoats, the former matrimonial home. She is unemployed at the present time as she was during the currency of the parties' marriage.

The Defender is Christopher Scott, residing at 16 Winton Court, Ardrossan. He is a postman. He has worked almost continuously throughout the marriage of the parties. He presently stays with his mother.

The parties were married on 18 July 1981. They had 5 children. Two of the children are still under 16 years of age, namely Byron Jason Ewan Scott, born 24 October 1990 and Andrew Nigel Hayden Scott, born 17 February 1993. Both these children live with the Pursuer.

The parties separated on or around 20 March 2003 which is the relevant date for the purposes of the Family Law (Scotland) Act 1985.

The marriage became unhappy due to the Defender's behaviour towards the Pursuer. He exercised control as regards the income of the family, which was gained from his employment. He kept the Pursuer short of money. He drank and gambled, spending excessive sums upon these habits to the detriment of family finances.

The Defender's habits of drinking and gambling impacted on the health of the Pursuer. Rather than spend money on the Pursuer he spent money on his drinking and gambling habits. As a result of this the Pursuer became increasingly unhappy.

The Pursuer formed a relationship with another woman and told the Pursuer about that. The Pursuer became unhappy about that.

The Defender made derogatory remarks about the Pursuer which upset her.

The parties accumulated debts during their married life together, partly due to the Defender's habits but partly due to the need to support their large family.

The Defender's behaviour towards the Pursuer, consisting of his excessive gambling and drinking, keeping the Pursuer short of money, making derogatory remarks to the Pursuer and forming a relationship with another woman was unreasonable. The Pursuer cannot be expected to live with the Defender. The marriage has broken down irretrievably and there is no prospect of a reconciliation.

After the parties separated there was a period when the Defender did not have contact with the child Andrew Scott.

The Defender required to seek an order of interim contact from the Court. This award of interim contact was made by the Court on 13 October 2003, which allowed contact by the Defender with the said child Andrew Scott.

The Defender and the Defender's mother enjoyed those contact sessions and the Defender would wish contact to be re-instated.

The child Andrew enjoyed contact with the Defender at first but became unhappy and unsettled as the Defender introduced him to the Defender's lady friend. The Defender introduced this lady as his cousin. The child Andrew subsequently learnt that the lady in fact was the Defender's lady friend. The child Andrew felt betrayed by his father and came to the view that he could not trust the Defender.

The child Andrew was concerned about being left on his own occasionally by the Defender and felt the Defender was not showing sufficient engagement with him.

Andrew decided to stop seeing the Defender in around April 2004. He has refused to have contact with the Defender since. Andrew believes that his father has less interest in him than in the Defender's own lifestyle.

The Pursuer has tried to encourage Andrew to go to contact and has not prevented the Defender seeing Andrew.

Andrew is of sufficient age and maturity that his views require to be taken into account by the Court.

Due to Andrew's lack of trust in the Defender, there is no realistic basis to hold it to be in his best interests to be made to go to contact with the Defender, which the child Andrew would not enjoy.

At the relevant date of separation the parties had assets and liabilities which had accrued during the currency of their marriage.

The matrimonial home had a value of £55000.00 as at 26 October 2003.

That the liability to the Nationwide Building Society in respect of the security over the matrimonial home amounted to £25988.43 Sterling as at 12 September 2003.

Guardian Plan Number T/41U7331042 had an estimated cash in value of £1648.53 as at 20 March 2003.

Nationwide Plan Number AE/3852W had a value of £1315.20 as at 20 March 2003.

That the matrimonial contents had a value of £2000.00 Sterling as at 20 March 2003.

That the value of the Defender's ICI pension fund attributable to the period of the marriage amounts to £59237.36 Sterling.

That the value of the Defender's Royal Mail pension plan attributable to the period of the marriage amounts to £2193.36.

That the liability to North Ayrshire Council in respect of council tax for the former matrimonial home for the period January 2001-2002, reference 21484902011 as at 21 March 2003 amounted to £208.20.

That the liability to North Ayrshire Council in respect of council tax for the former matrimonial home for the period 2002-2003, reference number 21484902011 as at 21 March 2003 amounted to £688.58.

That the liability towards Bank of Scotland, account number 1575612560893, as at 29 March 2003 amounted to £8956.43.

That the liability towards the Bank of Scotland overdraft, account number 00746994 as at 20 March 2003 amounted to £487.11.

That the liability towards Bank of Scotland VISA account number 4560720101441878 as at 17 April 2003 amounted to £2571.30.

That the liability towards Great Universal Catalogue, reference number 26980062 as at 11 April 2003 amounted to £2891.19.

That the liability to Burlington Catalogue as at 20 December 2002 amounted to £87.78.

If the matrimonial home was sold, the Pursuer and her 2 children under 16 years of age, Byron Scott and Andrew Scott, would be homeless. The Pursuer and the boys would not immediately be entitled to a council house. If the Pursuer obtained the tenancy of a council house it is likely not to be in the area where the Pursuer and the 2 children presently reside.

The 2 children, Byron and Andrew are well settled in the matrimonial home. They attend local schools and have friends in the local area. It would be better for the Pursuer and the children, whom she has continued to care for throughout the marriage and since the date of separation, that the children continue to live with her in the matrimonial home.

Since the parties separated the Pursuer has continued, solely, to pay the sums due in terms of the Standard Security and the 2 endowment policies.

The Defender told the Pursuer in or around June 2003 that the Pursuer and the 2 children under 16 years of age, could stay in the matrimonial home until the child Andrew was 16 years of age. He was still of that view as at the date of Proof.

The Defender has not sought to obtain a loan from any financial organisation as regards any proposed purchase of a house, since the parties separated.

FINDS IN FACT AND LAW

This Court has jurisdiction.

The parties marriage has broken down irretrievably.

It is better that no order be made in terms of the Children (Scotland) Act 1985, Section 11 than that an order be made in respect of the 2 children under the age of 16 years of age, Byron Scott and Andrew Scott.

There are no special circumstances to depart from fair sharing of the matrimonial property and debts and the net matrimonial property should be shared equally between the parties.

It would be fair sharing of the net value of the matrimonial property, having regard to the interests of the Pursuer and the children if the Defender's interest in the matrimonial home at 4 Prospecthill Road, Saltcoats and his interest in the Guardian Plan Number T/41U7331042 and the Nationwide Plan Number AE3852W were transferred to the Pursuer.

It would be fair sharing to effect equal division of the net free proceeds of the matrimonial property to make a pension sharing order providing that the Defender's sharable pension rights in ICI Pension Fund be subject to a pension sharing order for the benefit of the Pursuer in the sum of £5782.00..

FINDS IN LAW

The marriage between the parties, having broken down irretrievably, the Pursuer is entitled to Divorce.

A fair sharing of the net value of the matrimonial property being the transfer of Defender's interest in the said house and his interest in the said policies, that they should be transferred to the Pursuer, together with a pension sharing order in the sum of £5782.00 and the matrimonial contents..

Accordingly Sustains the Pursuer's first and second pleas-in-law; Repels the Defender's pleas-in-law; Divorces the Pursuer from the Defender; Grants Decree for the transfer of the Defender's right, title and interest in the matrimonial home at 4 Prospecthill Road, Saltcoats and the furniture and plenishings therein to the Pursuer and Ordains the Defender, within one month of the Decree, to execute and deliver to the Pursuer a valid disposition of his said right, title and interest in the said matrimonial home and such other deeds as may be necessary to give the Pursuer a valid title to the matrimonial home, which failing, Makes an order dispensing with such execution and delivery by the Defender and directs the Sheriff Clerk to execute such a disposition and other deeds, if any, in the Pursuer's favour, all as adjusted at the Sheriff Clerk's sight.

Grants Decree for the Transfer of the Defender's right, title and interest in the policies of assurance with Guardian Financial Services, Freedom Mortgage Plan Number P41U7331042, Nationwide Endowment Plan AE3852W to the Pursuer; Makes a pension sharing order in terms of Section 8(1) b)(a)(a) and 8A of the Family Law (Scotland) Act 1985 providing that the Defender's sharable pension rights in ICI Pension Fund are to be subject to a pension sharing order for the benefit of the Pursuer in the sum of £5782.00 with interest to be paid at the rate of 8% per annum from the date of the parties separation (20 March 2003) until the date of transfer of the appropriate pension credit into a qualifying scheme takes place and further Ordains the charges for implementing this order should be apportioned equally between the Pursuer and the Defender, the Defending being Christopher Scott, date of birth 30 December 1957, National Insurance Number WA765655A and the Pursuer being Shereldene Lynn Murray or Scott, date of birth 7 December 1957, National Insurance Number WA765600D.

Reserves the question of expenses and appoints parties to be heard thereon on 19 October 2005 at 10.00 am.

INTRODUCTION

This is an action of Divorce with ancillary financial craves. There are also craves for financial orders by the Defender and a crave for contact with the 2 children under 16 years of age.

There are pleas-in-law by the Defender, directed to, inter alia, the refusal of interdict and power of arrest. These were not matters raised before me and I can only assume that either the Record is inaccurate in recording the up to date issues between the parties or the amendment of the pleadings has removed these claims on behalf of the Pursuer in respect of those orders. In any event, I have simply refused the Defender's pleas-in-law are regards these matters as there is no subject matter pertaining to them before the Court.

This case called for Proof before me on 21 October 2004 and for submissions on 7 and 27 January 2005.

I begin by apologising to parties for the delay in issuing this judgement. This is due simply to the pressures upon the Court in contracting business, I accept that parties have been anxiously awaiting judgement and as I say I do apologise to them that this judgement has not been issued within a time that I would have preferred.

Ultimately the Defender did not oppose the Pursuer's crave for Divorce based as it is on the Defender's unreasonable behaviour. I have made findings in fact accordingly from the evidence led before me.

Parties have agreed a schedule of financial assets and liabilities and have entered into a joint minute of admissions regarding same, although some of the dates were not conform with the actual date of separation (the relevant date), I was advised by agents for both parties that they were content that I proceed to treat all valuations as being as at the relevant date of 20 March 2003 and I have done so.

An issue between the parties came to be whether, due to the behaviour of the Defender towards the Pursuer, as regards financial matters, the Court was entitled to find that there were special circumstances to depart from the normal rule that fair sharing of matrimonial property is equal sharing. A further issue was the question of the Defender's wish for contact with the child Andrew Scott (the youngest child), the Defender having in the course of the Proof, departed from the crave for contact with the child Byron Scott. I take it that for whatever reason the Defender does not now seek an order for contact with Byron. The remaining real question between the parties was the distribution of the matrimonial property on Divorce if, there being no special circumstances, the Court proceeded to effect an equal division thereof, having regard to the interests of the Pursuer and especially the 2 children under the age of 16 years of age, in remaining within the matrimonial home.

I heard evidence from the Pursuer, the parties' son, Colin Scott, and from the Defender and his mother, Mrs Barbara Scott. I had also conducted an interview with Andrew Scott on the morning of the Proof and had, with his consent, conveyed his views as to contact to both parties immediately thereafter, before hearing any evidence from the witnesses.

I now summarise the respective parties' submissions.

The Pursuer's agent invited the Court to order transfer of the title of the former matrimonial home entirely into the title of the Pursuer. He focused principally on the needs of the 2 children under 16, namely Byron and Andrew Scott. He submitted that the evidence showed that the Pursuer had, since the separation, paid the sums due in terms of the Standard Security and the premiums of the 2 policies. Although the Pursuer was unemployed and on benefits, she had managed to pay, with some assistance of her son Colin, all of the requirements of the Standard Security and the policies. Both the orders he sought, namely the transfer of the title of the house, the policies and ultimately a pension sharing order, were competent, Little v Little, 1990, SLT, 785 and further that the transfer of the house, because of the needs of the children, was justified, Peacock v Peacock, 1994, SLT, page 40. He drew attention to the financial relationship between the parties throughout the currency of the marriage, whereby the Pursuer had been unemployed and had brought up a family of 5 children, whilst the Pursuer worked. Further, he submitted, the debts accumulated by the parties were in fact to be regarded as largely "the fault" of the Defender. This justified, in his view, that the Court should form the view that there were special circumstances to allow transfer of the title to the house and the pension sharing order of a larger amount, as much as £14000.00, being more than an equal split of the net matrimonial property might otherwise afford to the Pursuer.

The Pursuer's submission was that she had never really worked outwith the home and was still, at the present time, having to provide a home for herself and for the 2 children, Byron and Andrew, still under 16 years of age.

The second proposition, if the Court was not prepared to transfer the title of the matrimonial home to the Pursuer, was to make an order whereby the Pursuer and her 2 children would be able to stay in the matrimonial home until the younger child, Andrew, was 18 years of age. However, the Pursuer's preference would be for an order giving effect to transfer the title to the matrimonial home and a pension sharing order to the Pursuer. The Pursuer's agent accepted, initially, that all the debts were joint debts with the exception of the debt standing in the Defender's sole name in the sum of £2891.19. He submitted that this was a debt accrued solely by the Defender as a result of his habits of drinking and gambling and accordingly this debt ought not to be included in any computation of joint matrimonial debts but rather should be excluded therefrom. He argued that to do otherwise would be unfair to the Pursuer.

The Defender's agent challenged, initially, the competency of the transfer order. She referred to Clive on "Husband and Wife", (4^th Edition), para 24.096 at page 475. She submitted that there was, on record, no averment that the heritable creditor would consent to a transfer of the matrimonial home into the sole title of the Pursuer.

I thereafter caused each party to look at and consider the case referred to in the footnote in Clive, namely MacNaught v MacNaught, 1997, SLT, (Sheriff Court), page 60 and indeed I continued the hearing of submissions to the second day thereof, especially to allow parties to consider that case.

The Defender's agent accepted, however, on the first day that the economic burden in caring for the children had remained with the Pursuer since the parties' separation. Her submission was that that did not justify the transfer of title sought. She submitted that as regards the Defender's debt to the Bank of Scotland that the debt ought to be seen as a debt of the marriage. She submitted that the terms of Section 11(7) of the 1985 Act prevented conduct being taken into account in coming to a view about the fair sharing of matrimonial property and the debts accrued. The Defender's agent submitted that in order to supply a "clean break" (she used a phrase from Christie v Christie, Judgement of Sheriff Principal B A Kerr QC, unreported 8 March 2004) that the best option would be to order the sale of the matrimonial home. Thereafter the matrimonial debts ought to be satisfied from the free proceeds and then the free proceeds remaining be split evenly between the parties. Any short fall due to the Pursuer could be made up of a pension sharing order.

On the first day of submissions when the Defender raised the question of competency and the lack of averment on record concerning the consent of the heritable creditor, the Pursuer's agent had indicated that there was available a letter from the heritable creditor confirming consent to transfer of title. The introduction of this production was objected to by the Defender. I allowed the production to be introduced as it seemed to me that the information was germane to the matter that I was required to decide and it seemed to me critical to have the fullest information available as to all the options that might be available to the Court in coming to a judgement in terms of a division of matrimonial property in terms of the 1985 Act. I had, of course, at that stage, as I told parties, yet to make a decision, but it seemed to me that it was relevant to have sight of an important piece of correspondence. I consequently repelled the Defender's objection. The production to which reference was made is 5/5 of process, a letter from Nationwide Building Society to the Pursuer's agents, confirming that they were not prepared to transfer the terms of the Standard Security into the sole name of the Pursuer, however, they would agree to the title of the home being transferred to the Pursuer, which in effect, of course, means that the obligations of the Standard Security would remain in the joint names of both the Pursuer and Defender. The actual factual import of that letter were not disputed by the Defender.

On 27 January, Mr McCaffrey, the Pursuer's agent, produced a helpful table of assets and liabilities. This was not actually formally lodged as a production, but Mrs Wilson, for the Defender, agreed that it would be of assistance to parties in the Court, for the Court to have regard to it.

On 27 January, Mr McCaffrey accepted that title only to the house would be able to be transferred and that consequently the Defender would be bound to remain under a personal obligation to the heritable creditor. However, he submitted, that obligation was, in reality, only a theoretical disadvantage to the Defender, in that, the Pursuer had, until now, paid all sums due to the heritable creditor and had done so since the date of separation. Even if the Pursuer was in future to default, then the creditor's remedy, as was well known in the Court, would be to seek to sell the heritable subjects and recover all sums due. Accordingly, in reality, the Defender would not suffer prejudice, insofar as his name would remain on the Standard Security although that might prevent the Defender obtaining a loan for a property that he might wish to come to buy. Mr McCaffrey submitted that there was in fact no evidence that the Defender had made enquiries or had even been offered or refused a loan on the basis of his obligation to another heritable creditor. It was on this occasion, also as I have indicated above, that the Pursuer's agent departed a little from his earlier submissions by highlighting a concern about the Pursuer's indebtedness to Great Universal Store. Apparently this debt had been paid and on the second day it was submitted that the value of the debt should obtain some form of credit on the division of the net matrimonial property. He repeated his submission that if the transfer of title was not effected by the Court in its order then the alternative order, allowing the Pursuer and the 2 children to stay in the matrimonial home until the youngest child, Andrew, was 18 years of age, ought to be made. In that event, he submitted, that the net value of the matrimonial home should be split as at the date of separation and the Pursuer should be awarded a judicial rate of interest until the house was sold and the proceeds realised. Further that the Court should take into account any payments made by the Pursuer. I paused to reflect and indicate that no evidence had been led before me as to the actual sums which had been paid by the Pursuer, since the separation or indeed their anticipated future cost. He repeated his submission that the Bank of Scotland debt, standing in the name of the Defender alone, should be deleted from the computation of matrimonial property and be treated simply as a debt of the Defender.

Mrs Wilson, for the Defender, repeated her objection to transfer of titles as incompetent in terms of McNaught although without any detailed amplification as to why it was incompetent. She accepted that otherwise all debts should be treated as joint debts. Her primary ultimate submission was that the sale would allow not only a "clean break" but would allow the Defender, as he had stated in his evidence "to move on". Any difference in sums could be met in a pension sharing order.

For ease of reference I have sub-divided the issues.

CONTACT

Andrew's views may be summarised as follows. Andrew enjoyed contact initially with the Defender, following the contact order being made by the Court. However, Andrew expressed concerns that on occasions he had been left outside a bookmakers whilst the Defender placed a bet and on one occasion had been left alone in his paternal grandmother's home for a period. These experiences upset him. More importantly, he was very concerned in having been introduced to a lady on a number of occasions. This woman had been referred to by the Defender as the Defender's cousin, but Andrew latterly understood that this lady was in fact the Defender's girlfriend. He did not like being in the company of the Defender when that lady was there. He was also concerned that his father had therefore lied to him in calling the lady his cousin, rather than referring to her properly, as his girlfriend. Andrew felt he could no longer trust his father. Latterly, in or around April 2004, his father had returned him from a contact session at an earlier time. Andrew felt that this was because the Defender was going out socially and that consequently Andrew felt that the Defender did not want to be with him. Taking all these factors together made Andrew decide not to see his father further. He did not, at the time of interview, want to see his father again.

Whilst the Court is obliged to take the child's view into account, the Court must have regard to the maturity of the child and the degree of insight he has into his own needs and wishes, therefore a sense of his own best interest. There was, however, supporting evidence as to Andrew's views which came from the evidence of the Pursuer and her son Colin. Andrew and Colin have a close relationship and Andrew has confided in Colin as to Andrew's concerns. Colin's evidence as to Andrew's concerns was expressed firmly and based on Andrew's experience of and reaction to the contact sessions. The Pursuer, too, gave evidence to similar effect. I accepted as credible and reliable the evidence of both the Pursuer and Colin Scott as to the effect of contact upon Andrew, namely that ultimately Andrew had lost faith in the Defender and could not trust him. I preferred that evidence to the evidence of the Defender, who said that contact had gone well and denied introducing Andrew to the lady in question. I accept, however, the Defender's evidence that he does wish to see Andrew. I accepted in part the evidence of Mrs Scott (the Defender's mother) that from what she saw, contact between the Defender and Andrew that it had gone well. However, whilst I do not doubt the lady's sincerity, I was drawn to the view as she was questioned by parties' agents, that her memory was unreliable. Accordingly, I placed more weight upon the evidence of the Pursuer and Colin Scott. They were more reliable on how Andrew had reacted to contact and were more reliable in their account of Andrew's views at present.

I was drawn therefore to the conclusion that it would not be appropriate to make a contact order in favour of the Defender with Andrew. Andrew has lost trust in the Defender and latterly was not enjoying contact with the Defender. I am satisfied from speaking to Andrew, but also from other evidence in the cause from the Pursuer and Colin Scott that notwithstanding the Defender's true wish to see Andrew that there is at the present time no realistic basis to order that Andrew ought to have contact with the Defender It may well by that Andrew will change his mind or that the Defender will perhaps, for example when marking Andrew's birthday and by keeping in contact by letter, change Andrew's negative view about the Defender. However, I have been drawn to the conclusion that this was a case, where having the interests of Andrew as my paramount consideration, I should not make an order. I should say that I have checked the Defender's evidence that the Defender had influenced Andrew against having contact with him. I found the Pursuer and Colin Scott's evidence credible and reliable, that in fact the Pursuer had encouraged Andrew to go for contact but that the Pursuer had ultimately not forced Andrew to go for contact against his will.

In all the circumstances, having regard to Andrew's interests as my paramount consideration, I have decided not to award a contact order to the Defender.

FINANCIAL ISSUES

This has been the most difficult issue in the cause. I believe that this has been difficult, not only for the Court, but also for the parties and those advising them. Indeed, for example, the Pursuer's submissions underwent a change between the first day of submissions and the second day as regards the treatment of the Pursuer's debt to Great Universal. On the first day the Pursuer's agents submitted that the debt was a matrimonial debt but by the second his submission had developed to an extent that he argued that that debt fell to be treated as one in which the Defender ought to get some credit when the Court came to decide the final division of matrimonial property.

It seemed to me that that change was indicative of the problem which the Pursuer's agent had consistently focused upon (and which it seemed cleared to me from my observance of parties and hearing their agents' submissions), namely that the matrimonial debt, about which it may be said there is some bitterness, was a matter of the utmost concern to both parties.

Mr McCaffrey displayed no little prescience in one observation he made that the difficulty for the parties and, he submitted, the Court, was the question of the debts of the parties collectively and individually.

I suspect that the debts, which are not inconsiderable for a couple otherwise of modest means, have proven a difficulty, preventing settlement.

However, when the Court comes to make its decision, it has to act objectively, with full regard to the provisions in the Family Law (Scotland) Act 1985 and with such authorities as are relevant.

The principles which govern financial division on divorce in Scotland, are those found in the 1985 Act. The net value of matrimonial property should be shared equally between the parties, (Section 9(1)). Fairly means equally, unless there are special circumstances to justify another solution (Section 10). The net value is the value of the matrimonial property at the relevant date, after deduction of any debts incurred by the parties, or either of them during the marriage which are outstanding at that date. The relevant date is the date of separation, which can be taken to mean the date when the marriage, for all practical purposes, came to an end. Here parties are agreed that the relevant date is the 20 March 2003

Using that date, and no other, has the value of providing a logical and convenient reference point. It avoids the expense and inconvenience of repeated revaluations at later dates should there be a delay in obtaining a divorce, Wallis v Wallis, 1992, SLT, page 676 at page 679.

Special circumstances are defined in Section 10(6). However, it is proper to acknowledge that the use of the phrase "special circumstances", involves a consideration of the words themselves.

The Court can only take the conduct of the parties into consideration for the purposes of Section 9(1)(a) only if it adversely affects financial resources Section 11(7).

As Professor Clive has observed "even a spouse who has wholly been responsible for the breakdown of the marriage is entitled to a fair share of the assets built up during the marriage", page 478.

Having reviewed the evidence in some detail, I have come to the view that in this case, there are no special circumstances which would justify an unequal division of the net matrimonial property. It respectively appears to me, after anxious consideration of the evidence, that the ultimate position of the parties related perhaps as much to the cost of bringing up, initially a family of 5 children, when only one party was in employment. The circumstances of such a family arrangement are not unusual in the experience of the Courts.

As regards the Defender's debt to the Bank of Scotland, I have been unable to hold that the debt falls within the definition of Section 10(1) and (6) of the Act. It was submitted that this debt of £2571.30 was really a debt built up by the Defender, solely to fund his own lifestyle. I have been unable to draw that inference. It was the Pursuer's evidence that she was unaware of this debt. This may well be, unfortunately, true but again that type of arrangement in not uncommon in marriages although it may be regretted. It is not possible for me, however, to hold, having reviewed all the evidence, that the accumulation of that debt was other than part and parcel of the financial circumstances of the family unit, who have, for example, also amassed an even larger debt to the same lender. It may be said that the debt of £2571.30 is part of the conduct about which the Defender is entitled to complain and indeed upon which to found as regards the Defender's general unreasonable behaviour when it came to decide the question of the grounds of divorce. However, I found myself unable, on reflecting on the evidence, to ascribe that debt to conduct which in itself has affected the financial relationship between the parties, to the extent that it might justify the invocation of the term "special circumstances".

I am, however, entitled, when considering alternative craves as regards the matrimonial home, to have regard to the needs of the parties and especially children under the age of 16 of the marriage. The Defender asked that the house be sold and the debts paid off. He wishes, in his own words, to "move on" and to make a fresh start. However, I cannot find from the evidence that he has tried to explore the obtaining of finance to obtain a new home. His own evidence reveals that he has not really tried at all. Importantly, too, he has recognised in his comments to the Pursuer, as I have found in fact, that the children do need a roof over their heads, certainly whilst Andrew was under 16. I infer from that admission and from his actual evidence at Proof that he does recognise the importance, as the Pursuer put it, that the children need a roof over their heads. The needs of the children are one factor I can look to in deciding what would amount to a fair and equal division of the matrimonial property.

Moreover, the Pursuer has shown that despite her somewhat straightened circumstances, she has been able to maintain payment of both the debt in terms of the Standard Security and the 2 policies and there is no evidence that she has had any difficulty, nor that she will have a difficulty in the future. She struck me as a lady who is careful about both the income she has and the outgoings she has to meet. In these circumstances, whilst a building society will not, whilst consenting to the actual transfer of the title of the house to her, relieve the Defender from his personal obligation in terms of the Standard Security, it seems reasonable to me to hold, given the passage of time since the date the parties separated, that the Pursuer will maintain payments. In that event the Defender will not be subject, in reality, to risk. Moreover, if the Defender was to default in payment, it is more likely, experience shows, the creditor would seek to sell the subjects and as is agreed in the joint minute there is sufficient equity in the home to meet any obligation to the heritable creditor and more. In these circumstances, I can to an extent, agree with the Pursuer's agent's submission, that the risk to the Defender in making a transfer of title order is more theoretical than real.

Further the needs for Andrew and Byron to remain in their home, to be near their schools and friends, is in my mind, an important factor. A sale of the property would impact substantially upon them. I prefer the evidence of the Pursuer that she would not be able to obtain other than homeless person accommodation, initially, and even in the long term that she would be unlikely to be afforded a tenancy of a house by the local authority in a similar area.

The Defender is working and has accrued pensions. These are assets of some value.

I find myself more in agreement with the Pursuer's submissions that the needs of the children to have a home overcome the Defender's preference for a split of matrimonial property which would allow the house to be sold.

I have considered the Defender's objection to the competence of making a transfer order (McNaught v McNaught).

It seems to me that the building society here have had notice of what is intended . They do not object to the transfer of title, but only to the release of the Defender from his personal obligations in terms of the Standard Security. In my view the competence of the order for transfer is not prevented in these circumstances. As I have narrated above the "risk" to the Defender in that obligation to the building society is in reality largely a theoretical one.

In considering all the factors placed before me, I have been drawn to the view that this case, the fair sharing of the net matrimonial property, will be accomplished effectively by a 50/50 split of the net value of the matrimonial property. I am satisfied in the evidence before me that there are no special circumstances to justify a departure from that normal rule.

The Pursuer will have the benefit of the matrimonial home and the policies associated therewith, together with the contents.

As narrated above, I cannot find any reason to treat the debts parties have accumulated other than as debts arising from their marriage, and as I have said, I see no reason to treat the Defender's debt to the Bank of Scotland nor the Pursuer's debt to Great Universal as other than debts accumulated as either jointly or individually as debts throughout the marriage.

I have accordingly determined that using the helpful table of assets provided by Mr McCaffrey and accepted by Mrs Wilson that the total matrimonial assets made up of the net value of the matrimonial home, the 2 policies of assurance, the matrimonial contents and the Defender's 2 pensions, should be the basis in assessing the assets of the parties. I pause to comment that the Royal Mail pension is not the subject of a crave for a pension transfer order; I understand that parties were agreed on this point, due to the fact that no intimation had been made to the Royal Mail pension trustees. The assets at the date of separation are namely £95407.02. The total debts of the parties at the relevant date are £15890.59. This leaves net assets, after deduction of these debts, of £79516.43. One half thereof is £39758.22.

In awarding the Pursuer the matrimonial home, the policies and the matrimonial contents she will obtain as at the relevant date, £33976.30. Accordingly, she is entitled to a pension sharing order to make up the figure to£39758.22 which requires a pension sharing order of, arithmetically, £5781.92, which in my view is convenient to round up to £5782.00.

I therefore made an order for that amount.

The Defender will have, subject to the pension transfer order, the value of his pension with ICI and the pension with Royal Mail. He is, of course, in employment.

Parties did not argue over the terms of Pursuer's crave as to interest on the pension sharing order, nor indeed did they argue over the expenses of the implementation of the pension sharing order and I therefore made the order in terms of the Pursuer's crave.

I have checked my notes and it would appear that no submissions were made on the question of expenses. It may well have been that parties had presumed no award would be made, but it seems to me that this matter not ought to be left to inference. Accordingly, I have put the matter of expenses out for a hearing so that I might hear parties submissions before decerning further.