Scottish Sheriff Court Decisions

SHERIFFDOM OF TAYSIDE CENTRAL & FIFE

AT DUNDEE

JUDGEMENT OF SHERIFF AG MCCULLOCH

In the cause

BRIAN BARKER

-v-

DANCHE MATEVSKA or BARKER

Act Samson (Blackadders)

Alt Brand (Thorntons)

Dundee, November 2007

The Sheriff having resumed consideration of the cause, allows the record to be opened up and amended by adding the word "earned" between "no" and "income" in the fourth sentence of answer 3; Sustains the pursuer's 4^th plea in law to the extent of refusing to admit to probation all averments in answer 2, save for the first, twenty-fifth and twenty-sixth sentences thereof; refusing to admit to probation the fifth sentence of Answer 3 and the twenty-second sentence of Answer 5; Grants warrant to the defender to intimate this action, with form F10 to the Leeds Building Society; Allows to parties a proof on their averments, to proceed on a date to be afterwards fixed; Reserves the question of expenses meantime.

NOTE :

[1].            In this action of divorce a diet of debate was held in support of the pursuer's fourth plea in law. A rule 22 note had been lodged containing five criticisms of the defenders pleadings. The pursuer sought to add a sixth, to which there was no opposition. In the action itself the pursuer seeks decree of divorce in respect that the marriage has broken down irretrievably by reason of non cohabitation for five years or more. There is no defence on the merits but the defender has financial craves seeking transfer of the pursuer's title to the former matrimonial home, a capital sum, a pension sharing order, a periodical allowance and interim aliment.

[2].            The pursuer's agent acknowledged at the outset that he was aware that the defender's agent had considerable problems getting instructions from his client, but nevertheless the action had to proceed and there were serious deficiencies in the defenders pleadings. In the first place the defenders averments are confused on the issue of marriage, and the pursuer referred to the first two paragraphs of his rule 22 note. The pursuer avers that the parties were married in Dundee on 3 June 1994. The defender explains and avers that "the parties underwent a marriage ceremony in Dundee on 3 June 1994". However the defender in answer 2 avers that the parties were married in Libya in 1980. There is no specification of exactly where this marriage took place, the date of the alleged marriage, the nature of the ceremony, whether it was a civil or religious marriage, nor who the witnesses were. The defender also avers that the pursuer was not divorced until 2 July 1981, and that after he became available and free to marry a marriage was constituted by cohabitation and repute. Accordingly the defender was seeking to set up either a marriage in Libya or a marriage by cohabitation and repute from some unspecified date after July 1981. This she was doing without seeking a Declarator of marriage. There was no crave for same, nor plea in law in support of same. Nor was there an action for Declarator in the Court of Session. Accordingly most of the averments in answer 2 were irrelevant, and entirely lacking in specification. If they were to remain in the pleadings, there was the possibility of an extremely lengthy proof on irrelevant material, with the possibility of a multitude of valuations being required to accommodate a marriage in 1980, in 1994, and some unspecified date in between.

[3].            Turning to his third point, that there was a reference in answer 3 that the defender was unable to work following injuries that she sustained following an assault by the pursuer. However there is no specification of the injuries, when, where or how they were said to have been sustained. Without such specification the pursuer could not reasonably prepare for a proof. Further and in any event the defender in answer 5 narrates her full medical history and difficulties. She also states that "Her condition has been caused largely by the pursuer's physical and psychological abuse of her over the years". No causal link is averred between the defender's inability to work, and the pursuers behaviour and accordingly the defenders averments about sustaining injury at the hand of the pursuer, and about her condition being caused by the pursuer are both wholly lacking in specification and should not be admitted to probation.

[4].            The defenders averments in regard to her current financial position were contradictory. In answer three she claims to have no income "at all" but in answer five she claims to be in receipt of benefits. Clarification is required.

[5].            The fifth point is that the defender seeks a transfer of title order in respect of the former matrimonial home. This property is burdened by a mortgage and accordingly such a transfer would require the consent of the heritable creditor in terms of section 15 (2) of the Family Law (Scotland) Act 1985, as amended. No such consent is averred on record, and consequently the defenders first crave and averments in support thereof are irrelevant. Further no warrant to intimate the action on the heritable creditor had been sought and the attitude of the heritable creditor is unknown.

[6].            Finally the defender in crave five was seeking a periodical allowance. Section 13 of the 1985 act allows a periodical allowance to be awarded by a court only in circumstances where a capital sum, or similar, was insufficient for the defenders needs. However there were no averments to support the claim for periodical allowance, in addition to the other financial craves she is seeking, and no averment as to how or why the other financial provisions sought might be insufficient for her needs.

[7].            Thus I was urged to exclude most of answer 2, and the averments in answer 3 and 5 relative to assault and abuse. This was in terms of paragraphs 1, 2 and 3 of the Rule 22 note. Paragraphs 4 and 5, together with the new sixth point were only being argued because the case was at debate in any event.

[8]. In reply I was advised that the defender was of Macedonian origin, who spoke English with a very heavy accent. She was almost housebound, had failing sight to the extent that she could not read, and suffering from many other serious and terminal medical conditions. I accept that she must be an extremely difficult and challenging client. Her position is that she met the pursuer in Libya and went through a ceremony there in 1980. She believed that she was married to him and had no doubt about this until much later. They had 2 children during the 1980s. She believed, because of what the pursuer told her, that she had to remarry in Dundee in 1994 to rectify difficulties over her entitlement to health benefits. She was averring these details for two reasons. Firstly it was important to consider the pursuer's conduct, and secondly it was necessary to consider the source of and application of funds from 1980. She also hoped in due course to seek the appropriate Declarator of earlier marriage.

With regards to the pursuer's conduct, section 11(7) is in the following terms: (7)In applying the principles set out in section 9 of this Act, the court shall not take account of the conduct of either party to the marriage or as the case may be of either partner unless--

(a) the conduct has adversely affected the financial resources which are relevant to the decision of the court on a claim for financial provision; or

(b) in relation to section 9(1)(d) or (e), it would be manifestly inequitable to leave the conduct out of account. The defender had a claim under section 9(1)(e), averring serious financial hardship, and therefore it was appropriate and necessary for the court to have regard to the pursuer's conduct.

[9].            The defender had applied for legal aid to add a crave for Declarator of marriage, or alternatively to raise an action for Declarator of marriage in the Court of Session. Unfortunately more information had been requested and this was hard to come by. The defender would keep on trying as she recognised the importance of obtaining a Declarator that the date of the marriage was earlier than 1994. The averments that related to the date of the marriage, in answer 2 were also relevant to the financial craves, having regard to section 11 (7) (b), and because there was a claim for a pension sharing order and clearly it was necessary for the court to determine the earliest date from which the defendant would be entitled to a claim on pursuer's pension. The defenders position was that she was effectively "conned" by the pursuer into the situation that she now found herself, and it was therefore appropriate to consider his conduct which in any event was not restricted to conduct "during the marriage". Thus, conduct prior to the established date of marriage could be relevant.

[10].        With regard to the averments of the pursuer causing injuries, it was difficult for the defender to recollect specific dates times and incidents, thus specification and fair notice was always going to be an issue. It was accepted on her behalf that the sentence in answer 5 commencing "Her condition has been caused largely..." could not be justified and should be deleted.

[11].        With regard to the fourth fifth and sixth points, the defender sought to amend, without objection, by adding the word "earned" into the fourth sentence of answer 3 which corrected what might have been contradictory averments. Further, warrant was now sought to intimate to the heritable creditor, and after that had been done the appropriate averments regarding the consent of the heritable creditor would, or as the case maybe would not, be made by amendment. The final point, regarding the order for periodical allowance only being made by the court if the court was satisfied that an order for the payment of capital sum, etc would be inappropriate or insufficient for the defender was a purely technical point which could easily be cured by amendment, if absolutely necessary. It was clear from the pleadings that the defender was claiming financial hardship, that she was unable to work, and that all the orders for financial provision sought were necessary for her. Her second plea in law set at the legal basis upon which she sought a periodical allowance and the pursuer could be under no disadvantage, being well aware of what was sought, and why. In all the circumstances therefore, this being an extremely unusual case, the pleadings should be left as they were, and a proof fixed.

[12].        I agree that a proof should be fixed as soon as possible as this case has been in court for two years now. However I am not satisfied that it is appropriate to leave the defender's averments in answer 2 in the pleadings for such a proof. It is quite clear that the purpose of these averments, particularly given the place at which they are found in the record, is to set up a marriage in 1980, by a ceremony in Libya, or subsequently by habit and repute. They would be justified only if they were in support of a Declarator of marriage, but no such crave is found. Accordingly they are irrelevant and cannot proceed to probation. I make no observation as to whether it is yet competent to take such a Declarator in the Sheriff Court.

[13].        Further and in any event the pleadings in answer 2 are quite lacking in specification with regards to the alleged ceremony in Libya, as no date is given, and there is no detail of where the alleged ceremony took place, by whom it was conducted, and there is no documentary evidence of it produced. Similarly, with regard to any subsequent marriage by cohabitation and repute, no date is set for this irregular marriage, and there are no detailed averments in support of such a claim. For reasons of specification therefore, these pleadings cannot proceed to probation. It may well be that the defender would wish to refer to the pursuer's conduct by reference to section 11(7)(b). To do so, however, there must be specific averments of conduct which are directed to the financial situation, rather than the pursuer's alleged behaviour towards the defender. The averments should not seek to introduce an argument about fault, but should instead deal with economic practicalities. If the defender chooses to make an argument under this section, new, relevant averments must be added. At present, the averments are insufficient and not specific to such a claim. They fall to be repelled. In any event, the source of funds issue can be resolved on the remaining pleadings, and by reference to section 10(6)(b) of the 1985 Act. I well understand that it may be important for the pursuer to establish an earlier date than 1994 because of her pension sharing crave, but at present, her craves and averments do not allow this.

[14].        The sentence in answer 3 commencing "She is unable to work..." and the sentence in answer 5 commencing "Her condition has been caused....." are both lacking in specification and cannot be allowed to probation. I do not see how the pursuer can be expected to defend himself from an allegation of assault when no specification of the circumstances of the assault is given. Nor is it averred how the assault precluded the defender from working. Further there is no causal link suggested between any of the defenders medical conditions, and the pursuer's actings towards her. Nor is there any specification of what the alleged physical and psychological abuses might have been, when they occurred, and how they affected the defender, and her ability to work.

[15].        The pursuer's fourth point has been cured by amendment and I have taken the view that the fifth point is not material at the present time. Clearly if the defender wishes an order of the transfer of title, certain steps required to be taken with regards to the heritable creditor, and if they have not been taken by the time of proof, the defender will be in difficulties. Similarly, the sixth point does not put the pursuer to any difficulty, given the terms of the second plea in law for the defender. It will be for the defender to prove the inappropriateness or insufficiency of orders for capital sum etc, thus justifying the award of a periodical allowance and I do not think it necessary to aver the matter. It is for the court to decide whether or not the defender's second plea in law can be sustained on hearing the relevant evidence at proof.

[16].        I was not addressed on expenses. Normally, they would follow success, and here the pursuer has been successful. Parties may therefore agree that the defender is liable, but if not, no doubt a motion can be lodged. Meantime, I have reserved the question of expenses.