Scottish Sheriff Court Decisions

You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> Reddie v. McKay [2006] ScotSC 59 (29 June 2006)
URL: http://www.bailii.org/scot/cases/ScotSC/2006/59.html
Cite as: [2006] ScotSC 59

[New search] [Help]

SHERIFFDOM OF SOUTH STRATHCLYDE DUMFRIES AND GALLOWAY

F192/03

JUDGMENT OF SHERIFF PRINCIPAL B A LOCKHART

in the cause

ELEANOR JANE REDDIE or McKAY

Pursuer and Respondent

against

ANTHONY JOHN McKAY

Defender and Appellant

Act: Mr Jack, instructed by Barton & Hendry

Alt: Miss MacTaggart of Mhari S MacTaggart

AIRDRIE: 29 June 2006

The Sheriff Principal, having resumed consideration of the cause, upholds the appeal to the extent of deleting the words "sustains the first plea in law for the pursuer" where they occur in page 3, line 11 of the Sheriff's interlocutor of 14 June 2005, and substitutes in lieu "sustains the second plea in law for the pursuer to the extent of granting an order in terms of section 16(1)(b) of the Family Law (Scotland) Act 1985 varying the terms of the Minute of Agreement entered into between the parties registered on 8 July 2003 by deletion of all terms of the agreement as to financial provision"; quoad ultra refuses the appeal; remits the cause to the Sheriff to fix a procedural hearing; finds the defender and appellant liable to the pursuer and respondent in the expenses of the appeal and allows an account thereof to be given in and remits same when lodged to the Auditor of Court to tax and to report; certifies the appeal as suitable for the employment of counsel.

NOTE:

Background to the appeal

1. This is an appeal against the Sheriff's interlocutor of 14 June 2005 following the hearing of a preliminary proof, wherein the Sheriff found that the terms of a Minute of Agreement between the parties dated 1 July 2003 and registered 8 July 2003 as to financial provision were not fair and reasonable at the time it was entered into by reason of the defender's failure to divulge his re-dress payment of £16,059.53 from London Life Limited which formed part of the matrimonial property at the relevant date. She found the pursuer entitled to an order in terms of section 16(1)(b) of the Family Law (Scotland) Act 1985 setting aside all terms of the agreement as to financial provision.

2. There was clearly a mistake in the interlocutor. The Sheriff stated that she sustained the first plea in law for the pursuer, repelled the first plea in law for the defender, and appointed the cause to a procedural hearing to determine further procedure. The first plea in law for the pursuer was in the following terms:

"The marriage of the parties having broken down irretrievably, the pursuer is entitled to decree of divorce as first craved".

The second plea in law was in the following terms:

"The pursuer being at an unfair disadvantage at the time the parties entered into the Minute of Agreement and as the agreement was not fair and reasonable at the time it was entered into, the pursuer is entitled to an order as second craved".

The second crave was in the following terms:

"To grant an order in terms of section 16(1)(b) of the Family Law (Scotland) Act 1985 varying the terms of the Minute of Agreement entered into between the parties registered on 8 July 2003 by deletion of all clauses of said Agreement."

The Sheriff was clearly upholding in the second crave and sustaining the pursuer's second plea in law. It was agreed by both sides that the interlocutor should read that she sustained the second plea in law for the pursuer to the extent of granting an order in terms of section 16(1)(b) of the Family Law (Scotland) Act 1985 varying the terms of the Minute of Agreement entered into between the parties registered on 8 July 2003 by deletion of all terms of the agreement as to financial provision. I have accordingly made the appropriate direction in my interlocutor.

3. Counsel for the appellant then referred to amended grounds of appeal which had been sent by fax by counsel to the respondent's solicitor on 28 April 2006 and lodged in court on 2 May 2006. It was accepted by counsel that in terms of Rule 31.4(5):

"An appellant - (a) may amend the grounds of appeal at any time up to 14 days before the date assigned for the hearing of the appeal".

Fourteen days before the hearing of the appeal was 25 April 2006. The amended grounds were accordingly lodged late. I was then referred to Rule 31.4(7) which provides:

"The Sheriff Principal may, on cause shown, shorten or dispense with the time limits mentioned in paragraphs (5) and (6).

4. Counsel for the appellant accepted that the appeal had been adjourned on 14 September 2005, 2 November 2005 and 19 January 2006 on the motion of the appellant in order that the legal aid position might be clarified and that the shorthand notes might be available. A further diet on 14 March 2005 was adjourned on the respondent's motion to allow her time to instruct a new solicitor.

5. I was informed by counsel for the appellant that the counsel originally instructed on 10 March 2006 had raised the question of lodging additional grounds of appeal. That counsel had suffered ill health, had been on sick leave in the middle of April and had been in hospital on 25 April 2006. Although discharged at that time, she had been recently hospitalised again and had undergone surgery. The medical background of the pursuer's original counsel was put forward as grounds for my exercising my discretion in allowing the amended grounds of appeal to be received late.

6. Solicitor for the respondent made reference to the length of time that this matter had been outstanding. The grounds of appeal ought to have been lodged long before this late stage. However, I took the view in the whole circumstances that it was in the interests of justice that I exercise my dispensing power in terms of Rule 31.4(7) and I allowed the amended grounds of appeal to be received and to form no 26 of process. I indicated that I expected to be addressed by the appellant forthwith, but would entertain favourably any motion made by solicitor for the respondent to adjourn to hear the respondent's case in view of the very short notice afforded by the late lodging of the amended grounds of appeal. I heard counsel for the defender and appellant on 9 May 2006, and then adjourned the appeal until 5 June 2006 when I heard solicitor for the respondent.

Submissions for the appellant and defender

7. Counsel referred to Paragraphs 1 and 2 of the additional grounds of appeal which provided:

"(1) That in all the circumstances the learned Sheriff erred in law in finding that the terms of the Minute of Agreement entered into by the parties anent financial provision were not fair and reasonable at the time it was entered into.

(2) In particular the learned Sheriff did not make findings in fact anent the value of the matrimonial property at the relevant date."

8. It was submitted that, to allow a conclusion to be reached that the terms of the Agreement were unfair and unreasonable at the time it was entered into, it was necessary for the Sheriff to make findings in fact anent the value of the matrimonial property at the relevant date. In the absence of such findings there was no proper basis on which she could conclude that the terms of the agreement were unfair and unreasonable.

9. It was submitted that to conclude that the agreement entered into between the parties was unfair and unreasonable, it was necessary to know the position that was being faced by the parties when they entered into the agreement. It was submitted that the Sheriff could not conclude that the agreement was unfair or unreasonable without knowing the whole financial picture. Without that knowledge, there could be no proper basis to conclude that the terms of the agreement were unfair and unreasonable.

10. The case of Gillon v Gillon (No 3) 1995 SLT 687 at 681C-E set out five principles which defined the approach which should be adopted when considering any application under section 16(1) of the Family Law (Scotland) Act 1985. Lord Weir said:

"The general approach which should be adopted in cases of this kind can be deduced from what has been said in the judgments of Edgar v Edgar, McPhee v McPhee and in the instance case at an earlier stage in the Outer House (Gillon v Gillon (No 1)). I can adopt from these judgments the following principles:

1. It is necessary to examine the agreement from the point of view of both fairness and reasonableness;

2. Such examination must relate to all the relevant circumstances leading up to and prevailing at the time of the execution of the agreement, including amongst other things the nature and quality of any legal advice given to either party;

3. Evidence that some unfair advantage was taken by one party of the other by reason of circumstances prevailing at the time of negotiations that may have had a cogent bearing on the determination of the issue;

4. The court should not be unduly ready to overturn agreements validly entered into;

5. The fact that it transpires that an agreement has led to an unequal and possibly a very unequal division of assets does not by itself necessarily give rise to any inference of unfairness and unreasonableness."

11. Counsel submitted that, without the Sheriff's knowing the full financial picture, she could not apply these principles to the Minute of Agreement entered into between the parties in this case. With regard to the findings in fact which the Sheriff did make, only three effectively related to financial provision. These were findings in fact 5, 6 and 7 which were in the following terms:

"5. The Minute of Agreement provides that the pursuer will convey to the defender her share of the matrimonial home in return for a capital sum of £19,500 and assignation by the defender to the pursuer of Royal and Sun Alliance Life policy number FC3807542. It also provides for the pursuer to receive pension credit transfers of respectively of £9,750.55 and £1,748.87 from the defender's personal pension policy no 80312424 with London Life Limited and his occupational pension with TDG Trustees Ltd. The agreement further provides that any other assets or debts held in the parties' sole names shall be retained by them.

6. In March 2003 the defender assigned said Royal and Sun Alliance Life Assurance policy to the pursuer. The pursuer encashed this policy for a sum of £5,478.08. This is the only term of the Minute of Agreement between the parties regarding financial provision which has been implemented.

7. On 1 July 2003 when the Minute of Agreement was entered into by the parties, the defender held an additional personal pension policy no 80379701 with London Life Ltd and to which the minute of Agreement made no reference. This policy was established on 28 July 2001 with a single premium of £16,059.53. The source of funds for this premium was compensation received by the defender from London Life Ltd for benefits lost by his taking out personal pension no 80312424 and not joining the TDG Trustees Ltd pension scheme. The re-dress payment of £16,059.53 covered the period 1 March 1989 to 27 November 1997. The re-dress payment was matrimonial property in terms of section 10(4)(b) and 10(5)(b) of the Family Law (Scotland) Act 1985."

12. It was submitted that on the basis of the facts set out in findings in fact 5, 6 and 7, the Sheriff would not have been able to apply the principles set in Gillon v Gillian (No 3) or to conclude whether there had been unfair or unreasonableness.

13. The respondent's complaint was that when the Minute of Agreement was executed by the respondent on 1 July 2003 the appellant had an additional personal pension policy which had not been included in the Minute of Agreement. Counsel for the appellant accepted that there was an additional policy no 80379701 with London Life Ltd and that this was not referred to in the Minute of Agreement. He also accepted that this policy was established on 28 July 2001 by a single premium of £16,059.53 and that the source of the funds for this single premium was compensation received by the defender and appellant from London Life Ltd for benefits lost by his taking out, on the advice of London Life Ltd, a personal pension policy no 80312424 with them instead of joining the TDG Trustees Ltd pension scheme, the occupational pension scheme relating to his employment. The re-dress payment of £16,059.53 covered the period from 1 March 1989 to 27 November 1997, being a period within the marriage and before the relevant date which was 11 August 2000. The additional policy was established on 28 July 2001 with a single premium of £16,059.53. This was after the relevant date.

14. I was referred to page 6 of the Sheriff's note wherein she said:

"In order to determine whether the agreement was fair and reasonable at the time it was entered into, it is necessary to examine the provisions of the agreement, the circumstances leading to the agreement, its partial implementation and the dispute which led to it being challenged."

It was submitted that this was not a happy expression of the Gillon v Gillon (No 3) principles, which identified the correct method of approaching any challenge to a Minute of Agreement.

15. I was then referred to paragraph 3 of the additional grounds of appeal:

"Further and any event having regard to finding in fact 5 (supra), it was not open to the court to conclude that the terms of the agreement were unfair or unreasonable. Findings in fact no 5 confirms that assets or debts held in the parties sole names shall be retained by them. There is no specification of what these assets or debts are. In the circumstances it cannot properly be concluded that the terms of the agreement were unfair to the pursuer or either of the parties".

There was no detail of any of these assets and accordingly no proper assessment had been undertaken by the court of the financial position of the two parties.

16. It was submitted that it was for the pursuer to establish by evidence that the order sought should be granted. There was no evidence available from the Sheriff's note to allow the conclusion to be reached that there was any question of unfairness or unreasonableness. I was referred to page 12 of the Sheriff's note under the heading "Decision" where she stated:

"The relevant date when the parties ceased living together is 11 August 2000. It was not in dispute that the matrimonial home, joint Royal and Sun Alliance endowment policy and the appellant's two pension policies all referred to in the Minute of Agreement were matrimonial property at the relevant date. Evidence as to the value of these items at the relevant date was not coherently led by either party, making it extremely difficult to form a view as to the proportionate share provided for each party in the Minute of Agreement. It was the defender's evidence that the Minute of Agreement represented a 50/50 division of the matrimonial property it divided. The defender was vague and evasive on a number of matters and in the absence of other evidence as to value I did not find him a credible witness on this point. No evidence was led regarding the value of the matrimonial home at the relevant date beyond the solicitor for the defender putting figures to the pursuer which she would not agree."

17. It was submitted that, considering the terms of the Sheriff's judgment, it was impossible for her to have reached a conclusion that there had been unfairness or unreasonableness. In particular there was no valuation of the matrimonial home and there were no details of "other assets and debts" referred to in clauses 7 and 8 of the Minute of Agreement. The principles set out in Gillon v Gillon (No 3) supra had not been properly applied.

18. It was submitted that the Sheriff could not endeavour to assimilate a general picture. She required to rely on evidence led, and there was no evidence referred to in her interlocutor or note to allow this to be done.

19. Moreover at page 13 of her judgment in the middle paragraph the Sheriff stated:

"In the absence of evidence as to the value of the matrimonial home at the relevant date I am unable to form a view as to the total value at the relevant date of the matrimonial property apportioned within the agreement, the proportions in which the agreement divided it between the parties and the substantial equity of the division. It is clear the pensions were divided with a small imbalance in favour of the defender. That imbalance would not of itself be sufficient to render the agreement either unfair or unreasonable. The defender was living in the matrimonial home at the time of the agreement with the youngest child of the marriage under the age of sixteen years and in these circumstances the provisions for payment of a capital sum to the pursuer and assignation of a joint policy in return for her interest in the title to the house would not in themselves be unreasonable. Without evidence as to the total value at the relevant date of the matrimonial property apportioned in the Minute of Agreement, I cannot form any view as to the substantial equity of these provisions as between the parties."

20. It was submitted that the Sheriff was in effect admitting that she could not apply herself to what was the crux of the matter, namely the substantial equity of the division. It was submitted that, applying the Gillon principles, it was necessary to examine the agreement from the point of view of fairness and reasonableness and the examination must relate to all the relevant circumstances at the time of the execution of the agreement. It was pointed out that in terms of the fourth Gillon principle the court should not be unduly ready to overturn agreements validly entered into. Effectively, in this case, the Sheriff had confessed that she did not know what was the substantial equity of the provisions agreed between the parties. There was no evidence to allow her to reach a conclusion on this vital point. It was submitted that against that background the Sheriff could not conclude that there had been unfairness or unreasonableness.

21. The fifth paragraph of the additional grounds of appeal read:

"Further and in any event in the circumstances the additional policy no 80379701 was not matrimonial property and the learned Sheriff erred in law in so concluding."

It was submitted that this was an important part of the case. The Sheriff stated at page 18 of her note:

"I accepted the defender's evidence that he made the compensation claim for pension mis-selling which resulted in the re-dress payment of £16,059.53 from London Life used to supply the premium for the second policy. I accepted that the evidence of the pursuer and the defender that the former did not know about the compensation claim. I also accepted the defender's evidence that he told his solicitor about the re-dress payment and the second pension policy before the Minute of Agreement was entered into ... It is clear that the defender's solicitor failed to divulge the second London Life policy to the pursuer or her solicitor. I have not found the explanation adduced for this to have any legal merit, for the reasons set out above".

It is accordingly clear that at the time the agreement was entered into the pursuer and respondent did not know about the additional policy. Although the defender and appellant had told his solicitor about the policy, that solicitor had not divulged that policy to the pursuer and respondent or her solicitor.

22. It was the appellant's position that this additional policy was not matrimonial property. Counsel for the appellant did not rely on the submissions made on the facts which I have set out which were made to the Sheriff and recorded in her note. He accepted finding in fact 7 apart from the last sentence which concluded:

"The re-dress payment was matrimonial property in terms of section 10(4)(b) and 10(5)(b) of the Family Law (Scotland) Act 1985."

It was submitted that the interlocutor and note did not show anywhere that the property right to the compensation or re-dress arose during the marriage. As at the relevant date (11 August 2000) there was no evidence that there was such a claim of potential property to go into the matrimonial property pot.

23. I was referred to section 10(4) of the 1985 Act which provides:

"Subject to subsection (5) below, in this section and in section 11 of this Act "the matrimonial property" means all the property belonging to the parties or either of them at the relevant date which was acquired by them (or him) otherwise than way of gift or succession from a third party - ...

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

24. It was submitted that there was no evidence that the policy no 80379701 was an item of property which had been acquired at the relevant date by either of the parties. There was no finding as at the relevant date either of the parties had acquired an interest or a claim in such a re-dress payment.

25. It was submitted that was the kernel of this ground of appeal. The Sheriff opined at page 14 of her note:

"I turn now to the defender's second pension policy with London Life Ltd. I am satisfied from all the evidence that the defender's second pension policy commenced, as is stated on the face of it, on 28 July 2001 and that it was not disclosed to the pursuer or any of the solicitors who acted for her during the negotiation of the Minute of Agreement or at the time it was entered into, on 1 July 2003. I am also satisfied from the evidence that the re-dress payment of £16,059.53 the defender received in compensation, and which formed the premium for the second policy, was in respect of the period 1 March 1989 to 27 November 1997. I am satisfied that this period was during the marriage and before the relevant date."

26. Counsel accepted the factual background regarding the second policy but he submitted that the Sheriff was not entitled to conclude that, as at the relevant date, the new policy was an item acquired by one or both of them.

27. I was also referred to section 10(5) of the 1985 Act which provides:

"The proportion of any rights or interests of either party - ...

(b) in any benefits under a pension scheme which either party has or may have (including such benefits payable in respect of the death of either party) and ...

which is referable to the period to which subsection (4)(b) above refers shall be taken to form part of the matrimonial property."

The appellant's point was, notwithstanding the statutory provisions, there was no evidence from which it could be concluded that, as at 11 August 2000, the parties owned or had a claim for the re-dress payment. It was pointed out that the appellant only became aware of the right to the re-dress payment some months after the relevant date. It was submitted that for the Sheriff merely to say that the period referable to the compensation is within the marriage was not enough. The property required to have been acquired before the relevant date. If the property had vested at the relevant date, it was matrimonial property. If not, it did not fall to be included. There was no evidence about how the right had occurred. The Sheriff had not made any finding in fact to the effect that the claim arose before the separation. Accordingly it was submitted it had not been established that the policy financed by the re-dress payment fell within the terms of section 10(4)(b) of the 1995 Act. There was no evidence that the claim existed and had been acquired by one of the parties at the relevant date.

28. As far as section 10(5)(b) was concerned it was submitted that these provisions also were governed by the terms of section 4 which identified matrimonial property as meaning all the property belonging to the parties or either of them at the relevant date which was acquired by them or him ... during the marriage but before the relevant date. In this case there was no evidence that the rights under this policy existed at the relevant date. Additionally, there was no evidence of the value of the re-dress payment as at 11 August 2000, which was the relevant date. The only value was that of £16,059.53 which was in July 2001.

29. Paragraph 6 of the additional grounds of appeal reads:

"esto there was in the circumstances any unfairness or unreasonableness at the time the agreement was entered into, which is denied, the learned Sheriff erred in setting the entire agreement aside. Any unfairness could have been corrected by setting aside the term of the agreement anent the sharing of the defender's pension and substitution of alternative terms which corrected the imbalance".

30. I was referred to page 11 of the Sheriff's note:

"It was a matter of concession from the pursuer that from the pleadings and evidence of parties the defender offered to concede half the compensation pension when this action was raised, but she wishes the whole Minute of Agreement set aside. The court should not be ready to overturn agreements validly entered into. There was considerable effort in negotiation to reach the point of agreement and the pursuer's previous divorce action was dismissed on her motion after a further adjournment was refused. It is not appropriate to lightly set the Agreement aside. Unequal division of assets would not of itself give rise to unfairness".

and to the top of page 17:

"The defender's re-dress payment is a substantial sum in the context of the value of matrimonial property I have been able to ascertain in this case. The principles of the 1985 Act entitle the pursuer to a fair sharing of the matrimonial property. I have concluded that an unfair advantage was taken of her by the failure to disclose the re-dress payment and the pension policy in which it was invested and that this deprived her of a more advantageous settlement in the Minute of Agreement than she would have received if this matrimonial property was divulged."

31. It was submitted that this conclusion by the Sheriff was plainly wrong. This did not sit with her conclusion at page 13:

"Without evidence as to the total value at the relevant date of the matrimonial property apportioned in the Minute of Agreement, I cannot form any view as to the substantial equity of these provisions as between the parties."

32. I was referred to the case of Ali v Ali (No 3) 2003 SLT 641 where it was held that in the absence of any evidence bearing upon the financial circumstances of the parties and other matters relevant to the respondent's claim for a capital sum, the Sheriff should not have granted decree. In this case it was submitted that the Sheriff did not have the necessary information before her to grant the decree which she did.

33. It was submitted that the Minute of Agreement should be allowed to stand. There was no evidence before the court to allow a proper examination to be made of the agreement from the point of view of fairness or reasonableness. The onus was on the pursuer and respondent in this case.

34. As far as the five grounds of appeal in the original note of appeal no 16 of process were concerned, counsel pointed out that grounds 1 and 4 had already been covered, and stated that he did not propose to advance any arguments in respect of grounds 2, 3 and 5.

Submissions for the pursuer and respondent

35. Solicitor for the defender and appellant indicated parties entered into a Minute of Agreement on 8 July 2003 which dealt, among other matters, with the financial issues which arose from their separation. The relevant financial provisions were dealt with in clauses 2 to 8. Following the execution of the Minute of Agreement the pursuer and respondent's agents received information to the effect that the defender and appellant had a further pension policy no 80312424 with the London Life which policy was comprised by a single investment of £16,059.53. This payment represented compensation to the defender and appellant from the London Life for mis-selling a pension plan to him. The period covered by the compensation was from 1 March 1989 to 27 November 1997. The relevant date in this case when the parties separated was 11 August 2000.

36. The period to which the compensation related was accordingly wholly within the marriage and before the relevant date. The existence of the policy was known to the defender and appellant and his agents at the time the Minute of Agreement was executed. It was not divulged to the pursuer and respondent or her then agents and did not form part of the negotiations in relation to the Minute of Agreement.

37. It was pointed out that the main areas of dispute were (a) did the policy form part of the matrimonial property and (b) was the failure to divulge the existence of the policy sufficient to set aside the Minute of Agreement. It was the defender and appellant's position that both questions fell to be answered in the negative. The pursuer and respondent moved both questions should be answered in the affirmative.

38. It was submitted on behalf of the pursuer and respondent that the policy did form part of the matrimonial property and the failure to divulge it was sufficient to allow the Minute of Agreement to be set aside. It was submitted that the Sheriff was correct to make these findings. Her decision was sound and should not be overturned. The first ground of appeal was that in all the circumstances the Sheriff erred in law in finding that the terms of the Minute of Agreement entered into by the parties anent financial provision were not fair and reasonable at the time it was entered into. It was conceded that in her interlocutor the Sheriff had clearly made an error. The interlocutor stated that she sustained the first plea in law for the pursuer and respondent, whereas in fact it was the second plea in law which she intended to sustain. This was agreed. It was noted that the Sheriff had conducted a preliminary proof to deal specifically with the issue of setting aside the Minute of Agreement. The crave for the respondent to set aside the Minute of Agreement was a crave within a divorce action which was still alive. It was submitted that the preliminary proof was the correct procedure and followed the procedure which took place in the case of Gillon v Gillon (No 3) 1995 SLT 67. No objection had been taken to that by the defender and appellant.

39. Although the second, third and fourth grounds of appeal were separately enumerated, in essence they presented the same argument, namely that the Sheriff did not have sufficient financial information before her in relation to the parties' assets and debts, either at the relevant date or at the date the Minute of Agreement was entered into to allow her to come to the conclusion that the Minute of Agreement was unfair and unreasonable. Solicitor for the pursuer and respondent did not accept that submission. It was submitted that the Sheriff did not require to carry out a close arithmetical analysis of the parties assets and debts to come to the conclusion she came to, namely that the terms of the Minute of Agreement were unfair and unreasonable. I was referred to pages 12 and 13 of her judgment where, it was submitted, the Sheriff set out in broad terms the basis of the financial settlement between the parties. It could not be said that she did not have regard to the financial situation because she was able to detail the case equivalent transfer values of both of the defender and appellant's divulged pensions, and she was able to conclude that the pursuer and respondent was receiving precisely half of the defender and appellant's occupational pension and some £2,000 less than half of his divulged London Life pension. She also detailed the value of the Royal Sun Alliance policy which was transferred to the defender and appellant, and she was able, on page 13, to conclude:

"As far is ascertainable from the evidence led the agreement therefore provided for the pursuer to receive £24,978.08 or thereabouts for her one half share of the matrimonial home. Adding her share of the pensions provided for in clauses 5 and 6, the agreement provides that for the pursuer to receive a share of matrimonial property amounting to £36,477.50 or thereabouts. The Minute of Agreement provided for the defender to receive the matrimonial home and £14,894, being the residual values of the first London Life pension policy and the TDG policy."

The Sheriff concluded in page 13:

"In the absence of evidence as to the value of the matrimonial home at the relevant date I am unable to form a view as to the total value at the relevant date of the matrimonial property apportioned within the agreement, the proportions in which the agreement divided it between the parties and the substantial equity of that division. It is clear the pensions were divided with a small imbalance in favour of the defender. That imbalance would not in itself be sufficient to render the agreement either unfair or unreasonable. The defender was living in the matrimonial home at the time of the agreement with the youngest child of the marriage under the age of sixteen years and in these circumstances the provisions for payment of a capital sum to the pursuer and the assignation of a joint policy in return for her interest in the title to the house would not of themselves be unreasonable. Without evidence as to the total value at the relevant date of the matrimonial property apportioned in the Minute of Agreement, I cannot form any view as to the substantial equity of these provisions as between the parties."

40. It was submitted that what was clear from that paragraph was that the Sheriff did have information before her to allow her to work out what the pursuer and respondent was receiving and to work out what the defender and appellant was receiving. The only asset to which she could not attribute a value was the matrimonial home.

41. It was submitted that the Sheriff had ample evidence before her to allow her to reach the conclusion whether, based on the information the parties had at the time the Minute of Agreement was entered into, it was unfair or unreasonable. The Sheriff did not require to give any greater scrutiny to the parties assets and liabilities than she did in the dicta which has been set out above.

42. It was pointed out that what led the Sheriff to conclude that the Minute of Agreement was unfair and unreasonable was the undisclosed pension. At page 17 the Sheriff said:

43. It was submitted that the Sheriff carried out precisely the exercise she was supposed to do. She was able to identify what each party was getting from the Minute of Agreement. She was able to identify the fact that the undisclosed pension would have formed a substantial part of the matrimonial pot and on that basis she correctly held that the Minute of Agreement should be set aside insofar as it related to financial provision. It was submitted that this case should not be decided on a rigorous scrutiny of the arithmetic, nor should it be decided on the basis of calculating precise percentages between the parties. Even if the Sheriff had scrutinised the "other assets and liabilities" (clauses 7 and 8) in more detail and had been able to reach clear findings in fact as to the percentage divisions between the parties, that would not have advanced matters, because Gillon v Gillon (No 3) makes it clear, as does the Sheriff, that it matters not whether the division is equal, unequal or very unequal as that will not of itself give rise to claims of unfairness or unreasonableness. I was referred to Gillon v Gillon supra and the fifth principle:

"(e) The fact that it transpired that an agreement had led to an unequal or possibly very unequal division of assets did not by itself necessarily give rise to any inference of unfairness or unreasonableness."

44. It was submitted that what the defender and appellant was arguing to the court in terms of his grounds of appeal 2, 3 and 4 was that unless the Sheriff was able to make clear findings in fact about the value of the matrimonial property and able to specify all the assets and the debts, she could not conclude that the terms of the agreement were unfair to either of the parties. However it was not a scrutiny of the assets and liabilities that made the Sheriff reach her decision. She had held that what made the Minute of Agreement unfair and unreasonable was that one party to it did not know of the existence of a piece of matrimonial property at the time the agreement was entered into. It was clear from the broad approach taken by the Sheriff from the information before her that she was able to conclude that the undisclosed piece of property was not an insubstantial sum in the context of what these parties had available to divide up.

45. The fifth ground of appeal was in the following terms:

"Further and in any event in the circumstances the additional policy no 803559701 was not matrimonial property and the learned Sheriff erred in law in so concluding."

46. The defender and appellant accepted that the policy issued by London Life Ltd as compensation was not divulged when the Minute of Agreement was signed. He also accepted that it formed a re-dress payment to him for his mis-sold pension. The defender and appellant's submission was that the policy could not form part of the matrimonial property because, at the relevant date, there was no property as such vested in him. It was submitted that there was a proper comparison to be made between this type of policy and a claim for compensation. It was submitted that compensation arising from an injury sustained in the course of a marriage, but not paid out until after the relevant date, was deemed to be matrimonial property. I was referred to the case of Skarpaas v Skarpaas 1991 SLT 15. It had been argued for the appellant that this policy differed from a claim for injury in that no-one knew of its existence at the relevant date, whereas, in a claim for compensation, the person making the claim would know that there was a claim outstanding. It was submitted that the non-divulged policy should be treated by the court in precisely the same way as a claim for compensation for an injury. The relevant findings in fact were 7 and 8 as follows:

"7. On 1 July 2003 when the Minute of Agreement was entered into by the parties, the defender held an additional personal pension policy no 80379701 with London Life Ltd and to which the Minute of Agreement made no reference. The policy was established on 28 July 2001 with a single premium of £16,059.53. The source of funds for this premium was compensation received by the defender from London Life Ltd for benefits lost by his taking out personal pension policy no 80312424 and not joining the TDG Trustees Ltd pension scheme. The re-dress payment of £16,059.53 covered the period 1 March 1989 to 27 November 1997. The re-dress payment was matrimonial property in terms of sections 10(4)(b) and 10(5)(b) of the Family Law (Scotland) Act 1985.

8. The defender made an application for compensation from London Life Ltd. The pursuer did not know of the application for compensation. The defender was aware of the compensation payment he received at the latest on 28 July 2001 when personal pension policy no 80279701, which the payment was used to fund, commenced. Neither the defender nor his solicitor divulged the compensation payment or policy no 80379701 to the pursuer or her solicitor during negotiation of the Minute of Agreement or when the agreement was entered into. The compensation payment and the existence of policy no 80379701 were unknown to the pursuer and her solicitor at the time she entered into the agreement"

47. It was submitted it was clear that the Sheriff was able to conclude that the defender and appellant had made an application for compensation. It was not a sudden or gratuitous payment he received in 2001 from London Life because they felt bad about a policy they had sold him. He had made a claim for a payment and had been successful. It was submitted that on these facts the policy and the money which was used to fund it were on all fours to an application made for compensation for injury. Although its value could not be quantified until after the relevant date, that did not matter. I was referred to Skarpaas v Skarpaas supra at page 18H-I:

"The action occurred during the course of the marriage and it gave rise to a claim for damages. A claim for damages is itself an asset which may be assigned ... although the claim was not quantified until after the relevant date and payment not made until later still, I am satisfied that the claim itself is matrimonial property and its value should be assessed and conformity with the sums awarded by Sheriff Risk ..."

48. It was submitted that this award to the defender and appellant was to provide him with compensation for a period totally within the marriage and before the relevant date. The Sheriff at page 15 of her judgment stated:

"The law as to whether an item is matrimonial property is not to be found in Pensions' Regulations but in sections 10(4)(b) and 10(5)(b) of the Act."

These are in the following terms:

"10(4) Subject to subsection (5) below, in this section and in section 11 of this Act, "the matrimonial property" means all the property belonging to the parties or either of them at the relevant date which was acquired by them or him ...

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

(5) The portion of any rights or interests of either party ...

(b) in any benefits under a pension arrangement which either party has or may have ...

which is referable to the period to which subsection (4)(b) above refers shall be taken to form part of the matrimonial property."

The Sheriff stated at page 16:

"I have found that the defender's re-dress payment was attributable to a period during the marriage and before the relevant date. I find that the re-dress payment of £16,059.53 was matrimonial property in terms of section 10(4)(b) of the Act. It is irrelevant that the payment was not made to the defender until after the relevant date. If part of the value of the payment is attributable to the period from the relevant date on 11 August 2000 until its payment on 28 July 2001, its valuation can no doubt be adjusted accordingly. I also find that the second London Life pension policy is matrimonial property in terms of section 5(b) of the Act as the defender's benefits in this policy are referable to a period during the marriage but before the relevant date, namely 1 March 1989 to 27 November 1999." (I think this is a typing error and that the date is 27 November 1997).

49. It was submitted that the Sheriff was correct in reaching this conclusion regarding the appropriate application of sections 10(4)(b) and 10(5)(b) of the Act. It was submitted that to conclude that it was not matrimonial property would give rise to a very unfair and unreasonable situation. If the defender and appellant had joined his occupational pension scheme instead of the London Life scheme, he would have been £16,059.53 better off in his pension interests - that was why he was given that amount in compensation. If he had joined the occupational pension scheme, then the pension fund available for distribution between the parties would have been higher at the relevant date and the pursuer and respondent would have been entitled to a share of these higher pension interests. The Sheriff recognised that part of the £16,059.53 may relate to the period from the relevant date (11 August 2000) until the payment on 28 July 2001. However, she stated "its valuation can no doubt be adjusted accordingly".

50. It had been argued by counsel for the defender and appellant that no valuation of the property could be given at the relevant date and therefore it could not be deemed to be matrimonial property. Solicitor disagreed with that submission and referred to the analogy of a compensation for injury which was paid out after the relevant date and for which there could be no clear value attributed at the relevant date. What made it matrimonial property was the fact that it constituted a right or interest that the defender and appellant had in the pension scheme which was acquired by him during the marriage and before the relevant date.

51. The sixth ground of appeal was in the following terms:

"esto there was in the circumstances any unfairness or unreasonableness at the time the agreement was entered into, which is denied, the learned Sheriff erred in setting the entire agreement aside. Any unfairness could have been corrected by setting aside the term of the agreement anent the sharing of the defender and appellant's pension and substitution of alternative terms which corrected any imbalance."

What affectively was being argued was that, if the Sheriff was correct, she should not have set aside all the financial provisions but instead substituted alternative terms on a pension sharing order to correct any imbalance. It was submitted that the Sheriff had considered this position but had concluded at page 18:

"I have considered all the circumstances prevailing at the time of execution of the agreement and the nature and quality of the legal advice given to both parties. I have concluded that an unfair advantage was taken of the pursuer by the defender in failing to divulge his second policy, which was matrimonial property, and this has rendered the agreement unfair and unreasonable. The tests of fairness and reasonableness are objective with regard to the provisions of the agreement itself in light of the unfair advantage taken. I have considered the fact that the failure to divulge was not personally a failure of the defender but done on legal advice. I have concluded that this does not objectively alter the consequent effects on the Minute of Agreement. I have considered the limited extent to which the agreement has been implemented and the difficulty which may arise in calculating a value for the defender's second pension policy consistent with the legislative requirements for the making of a Pension Transfer Order. In these circumstances the question of offset of this matrimonial asset against others may arise. I have therefore concluded that it is necessary to set aside all the clauses of the Minute of Agreement regarding financial provision."

52. It was submitted that the Sheriff had applied her mind to this issue, namely what would happen in terms of the division now that this policy was known about. She has indicated that the question of offset would undoubtedly arise. The Sheriff, in setting aside the financial aspects of the agreement, had put the parties back into the position they ought to have been when they entered the Minute of Agreement had the policy been divulged. It was submitted that the Sheriff was correct to hold that the terms of the Minute of Agreement were not fair and reasonable at the time it was entered into by reason of the defender and appellant's failure to divulge his re-dress payment which formed part of the matrimonial property. The appeal accordingly should be refused.

Decision

53. There are three issues in this case which require determination by me:

(1) Was additional personal pension policy number 80379701 with London Life Ltd established by a single premium payment of £16,059.53 on 28 July 2001 in respect of a re-dress payment referable to the period 1 March 1989 to 27 November 1997 an item of matrimonial property in terms of the Family Law (Scotland) Act 1985;

(2) was the Minute of Agreement between the parties dated 1 July 2003 and registered 8 July 2003 or any terms thereof as to financial provision not fair and reasonable at the time it was entered into by reason of the defender and appellant's failure to divulge this policy as part of the matrimonial property at the relevant date, namely 11 August 2000;

(3) if the answer to the first two questions are in the affirmative, is the pursuer and the respondent entitled to an order in terms of section 16(1)(b) of the Family Law (Scotland) Act 1985 setting aside all the terms of the agreement as to financial provision.

I deal with these three questions as follows:

(1) Did policy number 80379701 form part of the matrimonial property at the relevant date?

Subsection (5) of the Family Law (Scotland) Act 1985 provides:

"The proportion of any rights or interests of either party-

(b) in any benefits under a pension scheme which either party has or may have (including such benefits payable in respect of the death of either party), ...

which is referable to the period to which subsection (4)(b) above refers shall be taken to form part of the matrimonial property."

The period referred to in subsection (4)(b) is:

"during the marriage but before the relevant date."

It is clear from the findings in fact that this policy (a) involved the defender and appellant's rights and interests in the benefits under a pension scheme involving policy number 80379701 with the London Life Ltd, and (b) that it is referable for the period from 1 March 1989 to 27 November 1997, which is a period during the marriage but before the relevant date. Taking the terms of clause 10(5) on their own, it would appear that this policy should form part of the matrimonial property. There is no provision in that subsection of any requirement that the right should have been vested in any beneficiary or even be known by him or her at the relevant date.

Section 10(4) of the Family Law (Scotland) Act 1985 provides:

"Subject to subsection (5) below, in this section and in section 11 of this Act "the matrimonial property" means all the property belonging to the parties or either of them at the relevant date which was acquired by them or him (otherwise than by way of gift or succession from a third party)-

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

According to section 10(4), for property to become matrimonial property, it requires to have belonged to the parties or one of them at the relevant date and to have been acquired during the marriage but before the relevant date. If these provisions were the only ones which applied, it would appear that this policy was not matrimonial property as it had not been acquired during the marriage before the relevant date.

However, the key words of subsection (4), when dealing with this policy are "subject to subsection (5) below". Subsection (5) defines an exception to the terms of subsection (4). If the terms of subsection (5) are met, these prevail over the provisions of subsection (4).

In this case a consideration of the provisions of subsection (5) make it clear that the rights or interests of the defender and appellant in any benefits under a pension scheme in terms of this policy which are referable to a period within the marriage are part of the matrimonial property.

I consider the Sheriff was correct to state at page 18 of her note:

"I also find that the second life pension policy is matrimonial property in terms of section (5)(b) of the Act as the defender's benefits in this policy are referable to a period during the marriage but before the relevant date, namely 1 March 1989 to 27 November 1999."

I further accept the submission made by solicitor for the pursuer and respondent which I set out at paragraph 51 of this note namely:

"What made it matrimonial property was the fact that it constituted a right or interest that the defender and appellant had in the pension scheme which was acquired by him during the marriage but before the relevant date."

I accordingly take the view that a consideration of the provisions of sections 10(4) and (5) of the 1985 Act make it clear that this policy is part of the matrimonial property and should have been declared when the Minute of Agreement was being drawn up.

(2) Was the Minute of Agreement between the parties dated 1 July 2003 and registered 8 July 2003 or any term thereof as to financial provision not fair and reasonable at the time it was entered into by reason of the defender and appellant's failure to divulge this policy as part of the matrimonial property at the relevant date.

It is clear that the defender and appellant knew of the existence of this policy at the time of the Minute of Agreement was entered into. He did not declare it and accordingly it was not considered as part of the matrimonial property to be divided in terms of the agreement. I have held that the policy was matrimonial property. It ought to have been declared and been part of the matrimonial property divided in terms of the Minute of Agreement. In findings in fact 5, 6 and 7 of her Interlocutor and Note, the Sheriff made reference to a number of valuations which had been spoken to in evidence. She concluded that the agreement provided that the pursuer and respondent was to receive a share of the matrimonial property amounting to £36,477.50 and the defender and appellant was to receive the matrimonial home and £14,894.

It is clear that there was no satisfactory evidence before the court as to the value of the matrimonial home, nor were any figures put on "other assets" and "debts" referred to in clauses 7 and 8 of the Minute of Agreement. This prompted the Sheriff to say at page 13 of her judgment:

"In the absence of evidence as to the value of the matrimonial home at the relevant date I am unable to form a view as to the total value at the relevant date of the matrimonial property apportioned within the agreement, the proportions in which the agreement divided it between the parties and the substantial equity of the division. It is clear the pensions were divided with a small imbalance in favour of the defender. That imbalance would not of itself be sufficient to render the agreement either unfair or unreasonable. The defender was living in the matrimonial home at the time of the agreement with the youngest child of the marriage under the age of sixteen and in these circumstances the provisions for payment of a capital sum to the pursuer and assignation of a joint policy in return for her interests in the title to the house would not in themselves be unreasonable. Without evidence as to the total value at the relevant date of the matrimonial property apportioned in the Minute of Agreement, I cannot form any view as to the substantial equity of these provisions as between the parties."

The basic submission for the defender and appellant was that, applying the Gillon principles, it was necessary to examine the agreement from the point of view of fairness and reasonableness and the examination must relate to all the relevant circumstances at the time of the execution of the agreement. In effect the Sheriff had confessed that she did not know what was the substantial equity of the provisions agreed between the parties. There was no evidence to allow her to reach a conclusion on this vital point. It was submitted that against that background the Sheriff could not conclude that there had been unfairness or unreasonableness.

I do not understand the Sheriff to say that she reached her conclusion of unfairness and unreasonableness on the basis of her consideration of the evidence led about the provisions of the Minute of Agreement, which the parties signed. The Sheriff reached her conclusion on the basis of the defender and appellant's failure to disclose the redress payment and the pension policy in which it was invested. As the Sheriff stated at page 17 of her note:

"The defender's redress payment is a substantial sum in the context of the value of the matrimonial property I have been able to ascertain in this case. The principles of the 1985 Act entitle the pursuer to a fair sharing of the matrimonial property. I have concluded that an unfair advantage was taken of her by the failure to disclose the redress payment and the pension policy in which it was invested and this deprived her of a more advantageous settlement in the Minute of Agreement than she would have received if this matrimonial property was divulged."

It was pointed out to me that if I held that it had not been proved that the terms of the Minute of Agreement were unfair and unreasonable at the time they were entered into, the Minute of Agreement would remain in place and the only rights of the pursuer and respondent to the matrimonial property would be as contained in the Minute of Agreement. She would then have no right in this new property now discovered which was not declared at the time the agreement was signed. The only beneficiary would be the defender and appellant. The Minute of Agreement provided that the pursuer and respondent would receive a share of the matrimonial property amounting to £36,477.50 and the defender and appellant would receive the matrimonial home and £14,894. In the context of these figures the undeclared policy represented a significant sum.

Against that background I look at the five principles set out in the case of Gillon v Gillon (No 3) as follows:

"(1) It is necessary to examine the agreement from the point of view of both fairness and reasonableness."

In this case the Sheriff held that it was unfair and unreasonable in that a pension policy set up with a one off payment of £16.059.53 on 26 July 2001 was not declared by the defender and appellant and therefore not subject to distribution in terms of the Minute of Agreement. I consider she was entitled to take that view.

(2) Such examination must relate to all the relevant circumstances leading up to and prevailing at the time of the execution of the agreement, including amongst other things the nature and quality of any legal advice given to either party."

I accept that the defender and appellant did not divulge the policy on legal advice, his solicitor having taken the view that the policy was not part of the matrimonial property. I have taken the view that the advice was wrong. Whatever the equity of the provisions which were subject to the Minute of Agreement, on which the Sheriff could not pronounce herself in view of the absence of a valuation of the matrimonial home, the fact of the matter is that a very substantial asset was omitted from the agreement. This led to unfairness.

"(3) Evidence that some unfair advantage was taken of one party by the other by reason of circumstances prevailing at the time of negotiations that may have had a cogent bearing on the determination of the issue."

There clearly was unfair advantage taken by the defender and appellant in respect of his failure to disclose the existence of this pension policy. This has a cogent bearing on the determination of the issue.

"(4) The court should not be unduly ready to overturn agreements validly entered into."

The value of the item of matrimonial property undisclosed in this case, when compared to the remainder of the matrimonial property is, in my opinion, sufficiently material to consider overturning the agreement. Whether it is the whole agreement or only certain clauses of it should be overturned I will consider under the next question.

"(5) The fact that it transpires that agreement has led to an unequal and possibly a very unequal division of assets does not by itself necessarily give rise to any inference of unfairness and unreasonableness."

I consider that principle is applicable to a situation where what is being considered is the terms of the written agreement which was signed by both parties. The fact that such an agreement, after signature, on examination proves to have involved an unequal division would not necessarily give rise to an inference of unfairness or unreasonableness. That is what the parties may have intended at the time. That, however, is not the position here. The issue is whether there is unfairness and unreasonableness because the policy was not divulged and therefore not considered when the matrimonial property was divided.

Accordingly having myself considered the application of the principles set out in Gillon v Gillon I (No 3) to this case, I take the view that the Sheriff was entitled to reach the view that she took namely that the Minute of Agreement between the parties dated 1 July 2003 as to financial provision was not fair and reasonable at the time it was entered into by reason of the defender and appellant's failure to divulge the policy as part of the matrimonial property at the relevant date, namely 11 August 2000.

(3) Is the pursuer and respondent entitled to an order in terms of section 16(1)(b) of the Family Law (Scotland) Act 1985 setting aside all the terms of the Agreement as to financial provision.

The Sheriff considered this question and in my opinion put the matter very succinctly at page 18 when she said:

"I have considered all the circumstances prevailing at the time of execution of the agreement and the nature and quality of the legal advice given to both parties. I have concluded that an unfair advantage was taken of the pursuer by the defender in failing to divulge his second pension policy, which was matrimonial property, and this had rendered the agreement unfair and unreasonable. The tests of fairness and reasonableness are objective with regard to the provisions of the agreement itself in the light of the unfair advantage taken. I have considered the fact that the failure to divulge was not personally a failure of the defender but done on legal advice. I have concluded that this does not objectively alter the consequent effects of the Minute of Agreement. I have considered the limited extent to which the agreement has been implemented and the difficulty which may arise in calculating a value for the defender's second pension policy consistent with the legislative requirements for the making of a pension transfer order. In these circumstances the question of offset of this matrimonial asset against others may arise. I have therefore concluded that it is necessary to set aside all the clauses of the Minute of Agreement relating to financial provision."

With these conclusions I would respectfully agree.

54. In these circumstances I refuse the appeal and adhere to the Sheriff's interlocutor apart from making the necessary amendments to which I referred at the outset of this note. I shall accordingly appoint the cause to a procedural hearing before the Sheriff to determine further procedure. This will allow the Sheriff to consider the question of the expenses of the preliminary proof which were reserved.

55. As far as expenses of the appeal are concerned, I think the appropriate course is that expenses should follow success and I have accordingly made an award expenses against the defender and appellant. I take the view that the issues in this appeal are of such difficulty and complexity as to merit the employment of counsel. I have accordingly certified the appeal as suitable for the employment of counsel.