F440/07.

 

SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT ABERDEEN

 

 

 

		JUDGMENT   of   SHERIFF DOUGLAS J CUSINE
		in causa
		ROBERT ALEXANDER PORTER residing at 21 Urie Crescent, Stonehaven, Kincardineshire PURSUER
		against
		JILL DAWN TAYLOR or PORTER residing at 302 North Deeside Road, Cults, Aberdeen DEFENDER

 

 

 

 

 

ABERDEEN, 30 January 2009.

 

 

The Sheriff, having resumed consideration of the cause, (i) Finds the following facts to be admitted or proved:-

1.                  The Pursuer has a conviction dated 29^th June 2007 for attempting to pervert the course of justice.

2.                  The parties were married at Dunkeld on 29th June 2001. There are three young children of the marriage, whose details are in the Annexe to this judgment, but are not for publication. The children will in future reside with the Defender, but will spend approximately 2 months of each year with the Pursuer.

3.                  The Parties lived at Auckland Park, 302 North Deeside Road, Aberdeen, the former matrimonial home, until they separated on 2 April 2007 and have not lived together as man and wife since that date. There is no prospect of reconciliation. The Defender continues to reside in the matrimonial home with the children; the Pursuer lives in Stonehaven.

4.                  Prior to the marriage, the Defender worked for tourist agencies, including Munros, Aberdeen, from about the age of 20, until just before the eldest child was born. She had a good salary and contributed to a pension. She enjoyed foreign travel though her employment. She resided in Aberdeen in a flat gifted to her by her father, which was mortgage-free. The flat was sold and one-half of the free proceeds was part of the purchase price of the matrimonial home.

5.                  At 2" April. 2007, the matrimonial property of the parties comprised inter alia, the following:

(i) The former matrimonial home at 302 North Deeside Road
Aberdeen, title to which is in the joint names of the parties. This property is subject to a standard security in favour of the Halifax plc. As at 06 March 2008, the property was valued by Shepherd, Chartered Surveyors at £930,000. As at 03 March 2008, the balance of the outstanding mortgage was £161,542.65.

(ii) The Pursuer's Standard Life Endowment Policy no. W6684l 127A- V. As at 2 April 2007, this policy had a value of £23,450 apportioned to the period of the marriage.

(iii) The Pursuer's Standard Life Pension policy no. K572988000. As at 2 April 2007, this pension had a value of £6,297.14 apportioned to the period of the marriage.

(iv) The Pursuer's Gartmore Investment Portfolio. As at 2 April 2007, this portfolio had a value of approximately £13,000.

(v) The Pursuer's Baker Hughes pension policy. As at 2 April 2007, this pension had a value of £18,904.65 apportioned to the period of the marriage.

(vi) The Pursuer's 655 shares in Standard Life. As at 2 April 2007, these shares had a value of £2050.15.

(vii) The Pursuer's interest in Westerton Ltd acquired during the course of the marriage amounting to 30 shares in a total shareholding of 1000 shares. The Pursuer is the sole shareholder and controlling mind of this company ("Westerton", or "the company.")

(viii) The Pursuer's Natwest account no. 29039479. As at 2 April 2007, this account had a credit balance of £100.

(ix) The Pursuer's Halifax Liquid Gold account number 00625009. As at 2 April 2007, this account had a credit balance of £50.29.

(x) The Pursuer has a Range Rover motor vehicle. As at 2 April 2007, this vehicle had a value of approximately £3,250.

(xi) The Pursuer's SERPS entitlement. As apportioned to the period of the marriage, the value is £3600.

(xii) The Defender's SERPS entitlement. As at 2 April 2007, it had a value of £l,238.3l apportioned to the period of the marriage.

(xiii) The Defender's Lloyds TSB bank account. As at 2 April 2007, this account had a credit balance of £477.

6. As at 2 April 2007, the matrimonial debts of the parties comprised the following:

(i) The Defender's Marks and Spencer "& More" MasterCard. As at 2 April 2007, this credit card had a debit balance of £3,898.71.

(ii)   The Pursuer's Natwest bank account number 56168047. As at 2 April 2007, this account was overdrawn by £5,781.71.

7. During the course of the parties' marriage, the Pursuer worked for Baker Hughes and latterly Westerton, which was established prior to the parties' marriage. It provides fishing and milling consultancy and downhole electric cutting equipment to the oil industry.

8. The Pursuer's interest in Westerton amounts to its entire shareholding. He is the controlling mind of that company. The financial director at 2 April 2007 was one, Fred Small.

9. During the course of the parties' marriage, the registered office of Westerton was at the former matrimonial home, and the company's telephone number was the same number as that of the matrimonial home.

10. As at 2 April 2007, Westerton had two employees, the Pursuer and one, John Barrie. The Defender was credited with a salary from the company of £4,800 for the year to 31 March 2005, and was given a P.60 in respect of remuneration of £4,800 for the year to 31 March 2006, but she was not paid anything by Westerton which retained these sums. At some point, the P. 60 was on the Pursuer's desk, but is now missing.

 

11. There were some discussions between the Pursuer and the then financial director of Westerton, Fred Small, about creating a pension fund for the Pursuer through Harewood Ridge Pension Scheme. The sum of £80,000 was paid on the Pursuer's instructions to Harewood Ridge on 31^st March 2007 but repaid on 12^th July 2007. Between 31 March and 12 July 2007, this sum was held by Harewood Ridge for the Pursuer's benefit.

 

12. As at 2 April 2007, 50% of the net value of the matrimonial property amounts to £462,240.05. That figure includes one half of the value of the Pursuer's SERPS referred to in Finding-in-Fact 5(xi) and one half of the £80,000, referred to in Finding-in-Fact 11.

 

13. In an interlocutor dated 16^th April 2008, it is narrated that the Pursuer agreed to pay the mortgage and the amenities in respect of the matrimonial home, and aliment at the rate of £500 per month. As at 19 September, 2008, the date of submissions, and since then, he had not done any of these things.

 

14. At 18 September, 2008, the increase in the arrears of mortgage amounted to £1,600 and the arrears of council tax £1,007.

 

15. The parties had two cars, a BMW X5 and a Range Rover. The BMW had car child seats and the Defender usually used that car to drive the children around. When the Pursuer left the matrimonial home, he took the Range Rover, leaving the Defender with the BMW.

 

16. On one occasion in April 2007, shortly after the parties separated, the Pursuer returned to the matrimonial home during the night and removed the BMW. The next day, which was a school day, the Defender found a note from the Pursuer indicating that the car was being returned to John Clark, who are the Aberdeen dealers in BMW's (No. 6/1/7 of process). The car was not returned to John Clark, but was seen in Aberdeen, being driven by a female friend of the Pursuer's.

 

17. When the car was removed, it had three child's car seats in it, some of the Defender's CD's and the keys for her parents' house. The CD's and the keys were later returned to her, but she had to purchase new car seats for the children.

 

18. After the marriage, the parties resided at 1 Westerton Road, Aberdeen which was owned by the Pursuer. That property was sold and the former matrimonial home "Auckland Park", 302 North Deeside Road, Cults, Aberdeen was purchased. Entry was 31^st July 2004 and the title is in the parties' joint names.

 

19. The purchase price was £535,000. The Pursuer paid £69,851, the Defender paid £32,150, and there was a secured loan from Halifax of £354,982. The balance of the purchase price was £100,000 which was came from the Pursuer, but was paid by Westerton. The Defender did not know about this at the time of the purchase, nor did she did not know the extent of the Halifax loan at the time of purchase. The £100,000 was not a loan from Westerton, but was part of the purchase price of Auckland Park contributed by the Pursuer. There is no properly-constituted loan in favour of Westerton, nor one which is secured over that property.

 

20. When the parties moved to the former matrimonial home, it required a lot of work done on it. They painted it and replaced worktops and moved kitchen units around.

 

21. After the eldest child was born, the Defender did not seek employment. The Defender looked after the matrimonial home. She did some cleaning, she did all of the domestic tasks, like ironing and shopping, and did not receive much assistance from the Pursuer. She got some assistance from her mother and a cleaner was employed for 3 or 4 hours per week.

 

22. In addition, she dealt with any telephone calls and email messages which came to the home but related to Westerton. She would fax material to the Pursuer if he requested it. She also helped him man a stall on one occasion at the Offshore Europe exhibition.

 

23. While they lived together, the Defender was kept in ignorance of the family finances. However, the Pursuer gave the Defender £750 per month, out of which she had to pay for clothes and shoes for herself and the children and food for the family. The Defender also had a credit card which she used if she was short of money. The Pursuer frequently entertained clients at the former matrimonial home. The Defender was expected to prepare the food for dinners for these clients and although the Pursuer would purchase the wine, the Defender paid for the rest out of the £750. Out of that £750, the Defender also paid £360 to a nursery for each of the children who are now at a free nursery. On occasion, the Pursuer would give her more money if she was short.

 

24. The Pursuer took little to do with the children whose needs were attended to by the Defender.

 

25. After the parties separated, the Pursuer did not pay the mortgage or the amenity bills for the matrimonial home, despite undertaking to do so. He transferred the telephone to the Defender's name without her knowledge and blocked outgoing calls. He induced a female to pretend to be the Defender agreeing to this.

 

26. The Pursuer bought his own clothes and prior to their separation paid the mortgage and amenity bills.

 

27. The Defender received a loan of £15,000 from her father in order to purchase a car to replace the one which had been removed by the Pursuer. In addition, he paid for her solicitor's fees and outlays. The solicitor's fees and outlays amounted to £32,999.99 as at February 2008, and at the date of the proof, the total due by the Defender to her father was around £70,000.

 

28. The Defender had to borrow money from Lloyds TSB to pay her credit card bill, which is in excess of £6,000. The loan is over 3 years and she repays it at the rate of £185 per month.

 

29. The Defender used to be a member of a gym prior to the separation. She had to cancel that, but is now a member of another gym.

 

30. At one point, the Pursuer told the Defender that he needed to purchase another cutting tool for his business and when she asked whether they could afford it, she was told by the Pursuer that the mortgage over the former matrimonial home was only £50,000.

 

31. After the marriage, but before the children were born, the parties went on foreign holidays and to London and other places for weekends. After the eldest child was born, they went on holiday to Dubai with him, but after the other children were born, there were no further foreign holidays with the children, and holidays were in Scotland, for example, at Kippford.

 

32. The Pursuer, through his company, purchased a motor cruiser which was used for holidays. In 2008, the company also purchased a property in Kippford for the Pursuer. The price was £227,000, and there was no mortgage.

 

33. The Defender's former employers Munro's (a travel agency) are cutting down on part-time working. The Defender is 43 years of age, with young children, and her prospects of obtaining employment are not good, particularly at a salary which would be sufficient to cover any payments made to carers for the children.

 

34. The Pursuer continued to pay £750 to the Defender until the parties separated. The Child Support Agency became involved in September of 2007 and at that point, the Pursuer told them that he earned only £4,800 per annum.

 

35. By letter dated 5^th September 2007, the Child Support Agency advised the Defender that they had provisionally assessed the Pursuer's liability at £5,500 for the period from 14^th June 2007 to 12^th September 2007. The letter also set out what the Defender would be due for the period from 13^th September 2007 until 3^rd September 2008. The Defender was to receive £800 per week for the period 13^th September 2007 to 9^th January 2008, £600 per week for one week from 16^th January to 23^rd January and £500 per week from 23^rd January to 3^rd September. The higher payments included arrears.

 

36. Once the Child Support Agency became involved, the Pursuer stopped paying the council tax, gas and electricity for the matrimonial home.

 

37. Payments made by the Child Support Agency to the Defender were erratic both in relation to the times and the amounts. Payments of £500 per week were made in February 2008 and March 2008 and before that, £1100 or £1200 was paid. Since March 2008, the payments have been made at regular intervals and the amounts are what they ought to be. As a result of the irregularity in the payments from the CSA, the Defender was unable to budget properly.

 

38.        The Defender did not seek aliment from the Pursuer until April 2008, because she hoped that all the issues between them could be resolved amicably. She has made a number of offers to him which have been refused.

 

39.        The Pursuer has not disclosed his current financial position to the Court, or to the Defender.

 

(ii) Finds in fact and in law:-

 

(1) that the £100,000 which formed part of the purchase price of the former matrimonial home is not secured over the property and was part of the Pursuer's contribution to the purchase price. It came from his company, but any obligation to repay the company lies solely on the Pursuer.

 

(2)               that at 2 April 2007, the £80,000 deposited with Harewood Ridge on behalf of the Pursuer was matrimonial property.

 

(3)          that the Defender has suffered economic disadvantage during the marriage.

 

 

 

(iii)        Finds in law:-

 

(1)          that the relevant date for the purposes of section 10 of the 1985 Act is 2 April 2007.

(2)          that the parries' marriage has broken down irretrievably and that there is no prospect of reconciliation.

(3) that the Defender is entitled to an award of a capital sum of £462,204.05 under section 9(1)(a) and £77,400 under section 9(1)(b) of the Family Law (Scotland) Act 1985. ("the 1985 Act.")

(4) that the former matrimonial home ought to be sold.

(5) that the Defender ought not to be awarded any sum by way of periodic allowance.

(6) that the Defender is entitled to the expenses of the action.

 

THEREFORE (1) Sustains the Pursuer's 1^st pleas-in-law and divorces the Defender from the Pursuer; (2) Sustains the Defender's 3^rd plea-in-law, Repels the Pursuer's 9^th plea-in-law and in terms of the Defender's 5^th crave as amended Grants decree for payment by the Pursuer to the Defender of the sum of Five hundred and thirty-nine thousand, six hundred and forty pounds and five pence (£539,640.05) being the sum of Four hundred and sixty-two thousand two hundred and forty pounds and five pence (£462,240.05) to which she is entitled with reference to section 9(1)(a) of the 1985 Act and the sum of Seventy-seven thousand, four hundred pounds (£77,400) to which she is entitled with reference to section 9(1)(b) of the 1985 Act, with interest on the total sum at the rate of eight per centum per annum from the date of citation until the date of lodgement of the free proceeds of sale after-mentioned; (3) Sustains the Defender's 3^rd and 8^th pleas-in-law, Repels the Pursuer's 4^th plea-in-law, and in terms of the Defender's 4^th crave, grants an order for the sale of the former matrimonial home at 302 North Deeside Road Cults Aberdeen; and given the agreement of the parties, (4) Appoints Messrs Simpson and Marwick, Solicitors, Aberdeen to act in the said sale; (5) Ordains the said solicitors to lodge the free proceeds of the sale in the hands of the Sheriff Clerk, Aberdeen and that within 7 days of date of settlement of the sale, the receipt from the Sheriff Clerk being a sufficient discharge; (6) Certifies the cause as suitable for the employment of junior counsel; (7) Dismisses the Pursuer's 7^th crave and in terms of the Defender's 7^th crave, Finds the Pursuer liable to the Defender in the expenses of the cause and allows an account thereof to be given in and remits the same when lodged to the Auditor of Court to tax and report; (8) Quoad ultra Dismisses all other craves and Repels all other pleas.

 

 

 

NOTE:

Evidence was led on 9^th July 2008 at which point the Pursuer was unrepresented. (I attempted to persuade the Pursuer on that occasion about the wisdom of seeking legal advice, but he refused.) Evidence was led about the Pursuer's pension, if any, with Harewood. That evidence was transcribed on the instructions of the Pursuer. ("the Transcript.") Further evidence was led on 17^th and 18^th September when the Pursuer was represented by Mr Jack, Advocate. The Defender gave evidence and evidence was given on her behalf by her mother, Mrs Lesley Taylor. The remaining part of the Pursuer's evidence was then given. On all three occasions, the Defender was represented by Ms Ennis, Advocate.

 

1. Submissions for the Pursuer.

 

The Record ought to be amended to reflect that the current address of the Pursuer is 21 Urie Crescent, Stonehaven. There was no objection to that.

 

 

(A) Divorce, residence and contact.

 

Regarding the first crave for divorce, that had been amended and consent has been provided both in writing and in evidence. The parties married on 29^th June 2001. The date of separation was 2^nd April 2007 - and this was spoken to by the parties and the Defender's mother. The amended crave for divorce ought therefore to be granted.

 

There are three children of the marriage. The court had heard of the living arrangements of the children. It was submitted these are satisfactory. The interlocutor of 9^th July 2008 deals with matters of residence/contact and residential contact. It was submitted that no further order of court is required regarding the children.

 

 

(B) Financial Provision.

 

This is the remaining live issue before the court, notwithstanding some attempts from both sides, to resolve it. The law is set out in the Family Law (Scotland) Act 1985, ("the 1985 Act"), ss. 8, 9, 10 and 13, and it was accepted that the court has a wide discretion as can be seen from Little v Little 1990 SLT 785 as approved in Jacques v Jacques 1997 SC (HL) 20 at 22.

 

On record, the Pursuer seeks transfer of the former matrimonial home to him. This is the property at 302, North Deeside Road, Cults - also referred to as "Auckland Park," in which the Defender and the children currently reside. The Defender seeks sale of the property, payment of a capital sum of £500,000 and on divorce, the payment of periodical allowance at the rate of £3500 monthly for three years, or for such lesser period as the court thinks fit.

 

Counsel for the Pursuer was aware that there have been some discussions, over the period, regarding sale of the property between the parties. He submitted that the court could proceed in one of two ways; either (a) issue a judgement purely reflective of the craves - i.e. dealing with sale or transfer / capital sum etc; or (b) proceed to conclude what capital sum is to be paid by the Pursuer to the Defender, and then continue the case to see if the parties can agree a means to give effect to that, failing which the court will make orders.

 

The reason for this submission was that the children involved live currently in the former matrimonial home, and to minimise impact upon them, it may assist if parties could agree the means by which the court's judgment was to be given effect.

 

In respect of these submissions, there are two useful starting points:

 

(a) the Joint Minute of Admissions 9 July 2008 (No. 36 of Process).

 

Almost all values of matrimonial property at the relevant date are listed - including two debts. In Item vii thereof, it is agreed that 30 shares in Westerton out of 1000 (i.e. 3%) is the Pursuer's interest in Westerton is matrimonial property, i.e. £3596. In Item x, it is agreed that £3250 is the value of the Range Rover.

 

 

(b) the Defender's proposal for settlement of 15^th July 2008 with the schedule. (No. 6/10/1 of Process.)

 

 

Considering the schedule, it was submitted that it correctly reflects the figures in the joint minute and additionally includes in the matrimonial property a figure of £3596.97, which represents the value of the Defender's 30 shares in Westerton. It was submitted the Pursuer accepted that figure in evidence and it was Counsel's understanding that was the figure discussed during the first day of the proof.

 

He submitted that if one looked at the Defender's proposal and schedule, that gives an indication of her position on what is sought and the basis for that.

 

However, there were two matters of significance:-

 

(i) The £100,000 said to have been put into the purchase of the former matrimonial home by Westerton and how this is to be treated. The Defender seeks to leave it out of account.

 

(ii) The £80,000 - it being called the "Harewood Ridge Pension" which the Defender seeks to include.

 

 

(i) The £100,000 put into the purchase of the matrimonial home.

 

That figure appears in the company accounts for the years ending 31 March 2005, 31 March 2006 and 31 March 2007 (Nos. 6/6/10, 6/6/11, 6/6/12 of Process). The only evidence of that is from the Pursuer. It appears in the accounts for the year to 31 March 2005 and subsequent years, but it does not appear in the accounts for the year to 31 March 2004.

 

The Defender had a "forensic accountant" on the witness list, but did not lead evidence on this matter, and confined herself to cross-examination of the Pursuer who is not an accountant. He runs his business; the accountants do the accounts. He had explained with reference to the accounts the insertion of the £100,000 and in any event, even without his evidence, that can be seen from the accounts. It was not put to him that the £100,000 in the accounts was in respect of anything else.

 

Further, it is known that the Defender values the matrimonial property element of this business at £3596.97. The court does not need the Pursuer's evidence to see where this valuation arises from. It arises from the Defender's submissions on the first day and it was submitted the figure arises from the Record. The net asset value as pled by the Pursuer on Record (No. 35 of Process, p.15) is £119,899. Three percent thereof is £3596.97 which is the value the Defender places on the business.

 

The submission was that the £100,000 is in the Westerton accounts. It is in the net asset value. It is in the equation already and the Defender cannot have it both within the valuation of the company and out of consideration in the house. If it is in the company accounts and valuation, then it was submitted that it requires to come out of the house valuation; otherwise it is being counted twice. Accordingly, £100,000 has to come off the house valuation and the figures require to reflect that - thus the schedule needs revised in that regard.

 

It was accepted that the Pursuer may, at one stage, have described this £100,000 as a debt, or that he considered it as such. As a debt, it is clearly not properly constituted and clearly not secured. However, the evidence was that the parties could not have purchased this house without that money from the company. The parties have both benefited from this and that has increased in value. However, it would be unfair to allow that to occur without considering the source of this money. It was submitted that it is company money and it remains so. The source was not the proceeds of either of the parties' previous properties. The source of these funds remains the company and the sum of money continues to feature in the accounts as an asset. Reference was made to s. 10(6)(b) of the Act. For this reason, either on its own, or with the above, the sum of £100,000 ought to be deducted from the house figure and thus from the total net matrimonial property value.

 

In support of this submission, reference was made to the following productions, viz:- Messrs. Paull & Williamsons' client ledger entry (No. 5/1/1 of Process) and Westerton accounts for the years ending 31 March 2005, 2006 and 2007 (Nos. 6/6/10,11,12 of Process) and a receipt from Messrs. Paull & Williamsons in respect of £100,000 and a letter from Messrs Bothwell and Co. about that £100,000. (Nos. 5/2/1 and 5/2/3 of Process, respectively)

 

 

(ii) £80,000 "Harewood pension."

 

 

It was submitted this is not a pension, despite the Defender continuing to assert that it is. There is and was no policy. It was never invested in any policy, be it pension or otherwise, in the Pursuer's name. It appears that the sum was transferred to a firm's "professional services account" on 30 March 2007, as is shown in an e-mail. (No. 6/1/15 of process), and in the bank statement for Westerton for March 2007. (No. 5/4/1 of Process) The sum was returned to the company on 12.July 2007 (No. 5/4/1 and 5/4/2 of Process, and see two productions lodged on 17^th September 2008). The Pursuer's evidence was of the "possibility" of a pension, and no more, as can bee seen from the transcribed evidence (the Transcript, p. 41C ).

 

It was submitted that a party does not obtain a share in the "possibility of a pension" (the Transcript p.39B), and so this is not a matrimonial asset. It was never in the name of either party. If it is an asset at the relevant date, then it is not a matrimonial asset. This came from the company and was returned thereto. In any event, its source is the company - not the marriage.

 

However, it was submitted that if the court did not accept that, and considers it as a matrimonial asset, then special circumstances exist, viz:- that of "source of funds," and it was submitted that it that it ought to be left out of account. Reference was made to s.10(6)(b) of the Act. However, the primary submission was that it was not a matrimonial asset at the relevant date. There is no evidence that this "pension" ever came into being and the Defender's contention is incorrect. Reference was made to the following productions:- No. 5/2/4 e-mail from a Mr Froggatt to Defender's agents, and No. 6/3/4 an e-mail about a possible pension. References was also made to the bank statements lodged on 17 September 2008 (Nos. 5/4/1 and 2) and to the Pursuer's evidence at pages 39B and 41/42 of the Transcript.

 

While it would appear that the Defender seeks financial settlement under s. 9(1)(a) and (b) - totalling some £527,000, (see proposal letter of 15^th July 2008), the Defender actually craves for £500,000.

 

From the schedule, it can be seen that the total matrimonial property is stated as £920,880. It was submitted that the figures of £100,000 and £80,000 ought to be deducted. This would leave £740,880, 50% of which is £370,440.

 

Therefore it was submitted that the house ought to be transferred to the Pursuer, and the sum of £370,440, in return, paid to the Defender.

 

There are two small debts, one in each name of the parties. It was submitted that in the scheme of things, these broadly cancel each other out and can be thus ignored.

 

The Defender retains presently only a small amount of matrimonial property in her own name (her SERPS and TSB account.) Broadly the figure of £370,000 would appear to be fairly accurate.

 

 

From the evidence about the Pursuer's SERPS, the Pursuer considered this to be pre-marital. He accepted that if there was a valuation and if it was related and apportioned to the marriage, then it should be shared. The agreed figure is £3,600, one half of which is £1,800.

 

 

(iii) the Defender's claim under s. 9(1)(b) regarding economic disadvantage.

 

Jacques is authority for the proposition that even if there are special circumstances, that need not give rising to unequal sharing.

 

This claim is sought to increase the sum claimed by the Defender. It was submitted there is no basis for a claim greater than one-half of the net matrimonial funds. Reference was made to ss.9 and 10(1) of the Act.

 

It was submitted that there had not been any economic disadvantage to the Defender. On her own evidence, she entered the marriage with about £35,000 and an ISA of £6000 - £10,000. This was a short marriage of 6 years to separation with divorce likely to be not long thereafter.

 

On the above submissions, the Defender may leave the marriage with circa £370,000 and three children. That would be sufficient for her to purchase substantial accommodation for her and the children, but without a mortgage. She had had the benefit of not requiring to seek employment, but had been able to stay with the children and devote her time to them during their infancy--a reward which hopefully benefits the children through their lives--but was also a benefit to the Defender. It has not been established that there has been an economic disadvantage to her. The Defender's evidence was that she had been "very fortunate" to have been able to have been with the children. That this was manageable was due to the Pursuer's efforts.

 

The Defender has received the advantage of financial growth on a substantial scale - noting the possible return. From an objective stand point and in later years it was submitted that it is inconceivable that the Defender could look upon these few years as resulting in economic disadvantage.

 

Counsel then dealt with specific aspects of the matter.

(a) the Defender's salary claim.

However, notwithstanding that, the Defender seeks two times £4800 as a salary. It was submitted there is no basis for this. It was accepted that whilst this claim is no doubt founded upon the creative accounting of the Pursuer's accountants (and the practice of putting a spouse's salary through the books is perhaps not entirely uncommon), there are three ways of looking at this. Firstly, the Defender has already enjoyed the benefits of the Pursuer's industry throughout the marriage and should not receive it twice. Secondly, an issue which arises is what did she actually do for this money? It was submitted she did nothing more than might have been expected in a normal relationship. On her evidence, she spent 2/3 days at an exhibition in 2005 and some dealt with emails/faxes/phone calls. She would have to pay income tax and National Insurance on that figure. The claim was not warranted. Thirdly, if the Pursuer's accountants and their practices are wrong, then that is his and their issue and the Defender should be pleased to distance herself from that - rather than seek further involvement - as it appears she did very little for any salary.

 

This is not a claim based in s.9(1)(b) or s.11(2) of the Act. If the Defender has a claim, it may be more appropriately based in the law of employment or contract. This would not appear to be an "economic disadvantage" within the terms of the Act.

 

(b) Council tax arrears.

The Defender also seeks council tax arrears of £1007. It was submitted that this is minimal. If the court leaves it out of account, the local authority will take their appropriate action. Both parties did actually live in the property and enjoy the amenities.

 

(c) Halifax arrears.

The Defender seeks the increase in the arrears due to the Halifax - £1600. Again this appears to be a small matter. It was submitted that this is not a claim under s. 9(1)(b) for "economic disadvantage." Rather like the above matter, this has an alimentary context to it. It is not economic disadvantage or advantage. The Pursuer has not benefited from there being arrears due to the security holder. This is an example of the Defender seeking an alimentary matter "by the back door," under the auspices of economic disadvantage, but s. 9(1)(b) is not a device with which to seek aliment not sought timeously.

 

Further, if the former matrimonial home is to be transferred to the Pursuer as he craves, then clearly the Pursuer would be relieving the Defender of all liabilities under the mortgage and taking these liabilities over. To include this element as economic disadvantage, or to credit the Defender with this sum now, would result in double counting as the Pursuer would become liable for it on taking over the liabilities to the heritable creditor. In any event, the court would recall that the Defender has not paid this; indeed she has never made a mortgage payment in her life.

 

 

(d) The Defender seeks £50,000 for indebtedness to her parents.

 

It was submitted that this is styled as being "debts to parents" arising from the Pursuer's "failure of alimentary obligations". From the terms of the "proposal letter," the matter of economic disadvantage is being used to seek aliment - aliment that the Defender did not seek. She had a remedy at the time and that was to move the court for aliment. She did not do so until April 2008. In any event, the documentation that was provided to the court then was ridden with error and exaggeration. (see 6/6/2 and the Defender's evidence; the Defender never paid mortgage or council tax). It resulted in an award being made. It was clearly wrong, potentially misleading and is evidence of the inaccuracy and unreliability of the Defender's figures. This head of claim is an attempt, on the face of it, to seek aliment "by the back door". This is a matter between her then agents and the Defender - it is not one for the Pursuer to remedy under this head of claim. Whilst it is styled as arising from a failed alimentary obligation on the face of it, it clearly is not that in "fact".

 

The evidence of the Defender and her mother was the same. The Defender received accounts from her lawyers which she gave to her parents who paid them. The list of figures (No. 6/6/6 of Process) is the list of what was paid to the Defender's lawyers. It is said to be a claim for economic disadvantage from failed alimentary obligations, but it is actually a claim for legal expenses.

 

The Defender could have claimed aliment from the court. To seek it now under this heading is without a basis. It is a claim for legal expenses, under the guise of aliment, under the guise of economic disadvantage. The Defender also seeks the expenses of the action in a separate crave, and one wonders how this can be consistent.

 

The evidence was this was paid by her parents out of "love favour and affection" There is no document of debt; there are no terms of repayment. It was said it was to be repayable "as soon as she has the money to repay it". This is not a claim under s.9(1)(b).

 

 

 

(e) The Defender seeks payment of a credit card debt.

 

It was submitted that there is no or little evidence of the amount outstanding at relevant date. This is an unsubstantiated claim and is of an alimentary nature.

 

 

(iv) Periodic Allowance.

 

This is also sought; though the period for which this is sought is slightly unclear. It may be sought for 3 years in the Defender's submissions. It was submitted that three years is excessive.

 

This was a marriage of limited duration - 3 years of periodical allowance is excessive. Looking at s. 9(1)(c) and (d) and s.11(3) and (4), three years is allowed for as a period of adjustment. Consideration has to given to marriages that may last 20/30 years, but the current marriage was short. The children will in due course commence school. The children are to spend at least two months per year with their father. The Defender has made no attempt to enquire after employment.

 

The Defender receives and will continue to receive CSA money for the children. She cannot claim hardship. She has never paid a mortgage payment in her life and is about to receive, on any view, a considerable sum of money.

 

Noting the terms of s.13(2) of the Act, it was submitted that this is not a case that merits any award of periodical allowance. Reference was made to the case of Coyle v. Coyle. The primary submission was that nothing should be paid under this head because a capital sum is evidently appropriate and sufficient to satisfy this matter. In any event, looking at the apparent lack of a request for aliment until April 2008, it was submitted this claim is not established.

 

Conclusion.

It was submitted that a capital sum as indicated above meets the requirements of fairness and equal sharing between the parties. The Defender has gained considerable economic advantage from the marriage. The Defender's claims for further shares of the matrimonial funds are misguided and not established. Given that the Pursuer is seeking the transfer of the property, there appears to be no need to order the sale of the property.

 

It was submitted that expenses should be reserved.

 

 

2. Submissions for the Defender.

 

 

Introduction

 

Defender's counsel moved to amend the crave to £550,000 which was not opposed.

 

 

The Court was invited to make the following orders:

 

1. To grant an order for the sale of the former matrimonial home at 302 North Deeside Road Cults Aberdeen in terms of the Defender's 4^th crave and 3^rd plea in law.

 

2. To grant decree to the Defender for payment to her by the Pursuer of the capital sum.

 

3. To grant degree for payment by the Pursuer to the Defender of payment of periodical allowance.

 

4. To grant certification of this cause as suitable for the employment of junior counsel and for the expenses of this action.

 

 

CREDIBILITY AND RELIABILITY

 

In making the orders sought on behalf of the Defender, the Court was invited to consider all of the evidence in the case together with manner in which it had been given. Before addressing the particular parts of the evidence that the Defender sought to rely upon in order to support the orders sought, the following general remarks were made about the credibility and reliability of the witnesses.

 

(i) the Pursuer.

He represented himself on the first day of the proof. At that time, the Court did not have the opportunity that it might normally have had to consider his evidence initially in the context of its presentation in the familiar format of examination-in-chief. This traditionally provides the Court with the first opportunity to consider, in a comprehensive manner, the totality of the case on behalf of a party, with subsequent witnesses expanding upon that case. Generally this introduction of the Court to the Pursuer is seen as the opportunity for the Pursuer to make a good "first impression".

 

In this case, it was submitted that the Pursuer did not create that good first impression, but on the contrary that he made a very poor first impression and this is one from which the Court should not depart. The Court was invited to recall the demeanour of the Pursuer on the first day of evidence. It was submitted that he was antagonistic, arrogant and uneasy. Whilst this unease might be considered as reasonable given the unfamiliar setting to him, the Pursuer has acted on his own behalf for some time. He has conducted contested motions and represented himself before other sheriffs of this Court. The setting was not unfamiliar. The Pursuer categorically declined several opportunities afforded to him on the first day to obtain legal advice. He did so with a measure of assuredness that was disrespectful to the help being offered to him by the Court. Accordingly, the Court should look to this whole demeanour and manner in considering the character of the Pursuer and assessing his credibility and reliability. In addition, all of the "evidence" given by the Pursuer, including that given by him in what might have been seen traditionally as submissions on the first day of evidence, should be assessed by the Court in determining the questions of his credibility and reliability.

 

In looking at the totality of the Pursuer's behaviour and demeanour throughout these proceedings, it was submitted that the Pursuer is neither a credible nor reliable witness. On the contrary, at every opportunity, he had taken the road of dissembling, obscuring, lying or actively misleading the Court. These are harsh submissions. However, the Court was invited to make a finding in fact that the Pursuer cannot be trusted. Furthermore the Court should find as a matter of fact that he has lied and mislead this Court.

 

In was submitted that the evidence led on behalf of the Defender was in marked contrast to that of the Pursuer. The Defender was wholly credible. Her evidence was at times a little lacking in the clarity that might be hoped for, but that did nothing to detract from its credibility--memory is an unreliable faculty. The Defender has had a very turbulent time in the past year or so. She has endured this litigation together with its associated stresses. She has, largely single-handedly, parented 3 very small children. She has endured the break up of her marriage and the humiliation of her husband's adulterous relationship. Any one of these things could cloud one's ability to recall life events with clarity. In was submitted that the occasional lapses in memory or lack of clear focus when answering some of the Pursuer's counsel's questions was reasonable. It did not detract to any extent from the fact that her evidence was given in a wholly honest and straightforward manner, contrasting sharply with that of the Pursuer. The evidence of Mrs Taylor, the Defender's mother, was without doubt given in a wholly credible and reliable manner. It was completely in tune with that given by the Defender and was characterised by her concern and her sincerity.

 

It was submitted that where the evidence of the Pursuer and Defender differs on material aspect, the Court should always prefer that of the Defender.

 

 

 

 

ORDERS SOUGHT

 

 

1. Order for Sale

 

To grant an order for the sale of the former matrimonial home at 302 North Deeside Road Cults Aberdeen in terms of the Defender's 4^th crave and 3^rd plea-in-law.

 

Events have moved on in this case and the evidence is that this order is now sought by both parties. That is the evidence before this Court. Both the Pursuer and Defender have supported the sale of the property on the open market in their evidence and accordingly, of consent, this order should be pronounced. In any event, in order to facilitate the funding of the other orders on behalf of the Defender the former matrimonial home requires to be sold. It represents the single largest item of matrimonial property. In any event, the property could not be transferred from one of the parties to the other without the consent of the heritable creditor, and there was nothing before the Court to determine what their view might be.

 

 

2. Payment of Capital Sum

 

It follows from this order for sale that there should be an order that the net free proceeds of that sale be divided between the parties. However, in quantifying the figure for division of these net free proceeds, it is necessary to look at the totality of the Defender's claim for a capital sum and then return to apply that claim to the division of these net free proceeds. The reason for this is twofold:

i.                    The Court can have no confidence that any order for payment of a capital sum that required the Pursuer to make over assets to his wife would be implemented by him. It would require enforcement measures to be taken on behalf of the Defender. This would lead her to further legal expense and delay in achieving the objective of the legislation in achieving a clean break.

ii.                  The former matrimonial home is the single largest asset that has value. It represents, practically, the available funds from which to order the payment of a capital sum.

 

Accordingly, having ordered the sale of the former matrimonial home, the Court was invited to include in its calculations of the capital sum the value of that home as agreed in the joint minute and then order payment of a fixed amount of capital to the Defender, in order that she has a discernible sum due to her that she may easily enforce on sale of the former matrimonial home.

 

The level at which the Court fixes the capital sum due to the Defender (and consequently the level at which these net free proceeds are divided) is a matter for the exercise of this Court's discretion, having regard to the relevant case law and legislation. The exercise of that discretion must, of course, be reasonable.

 

In quantifying the Defender's claim for a capital sum, such a claim is sought in terms of s.9(1) (a) and 9(1) (b) of the Act .

 

S. 9(1) (a) of the 1985 Act states that

"the net value of the matrimonial property should be shared

fairly between the parties to the marriage...." and s. 10 (1) provides "In applying the principle set out in s. 9(1) (a) of this Act,

the net value of the matrimonial property....shall be taken to be

shared fairly between the persons when it is shared equally or in

such other proportions as are justified by special circumstances"

 

In terms of s. 9(1) (a), the Defender seeks a fair division of the parties' net matrimonial property. The starting point for determining what amounts to this "fair division" is that there is an equal division of the net matrimonial property of the parties. Departure from this equal division is justifiable only on the existence of special circumstances justifying such a departure.

 

The Court must first determine the extent of the net matrimonial assets of the parties. The Court's attention was directed to the Schedule of Matrimonial Property--the same schedule that was enclosed with the Proposal ordered by this Court in July 2008. (No. 6/10 of Process) The figures within it, with the exception of the figure in bold, are a reflection of those within the Joint Minute of Admissions. The figure in bold is the disputed pension investment with Harewood Ridge amounting to £80,000.

 

 

1. Former Matrimonial Home

 

The facts and figures agreed within the Joint Minute in respect of it cannot be departed from. Accordingly, the fact that the house is matrimonial property having a net asset value of £786 457.35 as at about 6^th March 2008 cannot be departed from.

 

The Pursuer may try to argue that there should be unequal division of that asset. The Pursuer gave evidence that at the time of the purchase of the former matrimonial home, he had been unable to sell his property at Westerton Road in Cults. The Defender had sold her flat. £100,000 was needed to fund the purchase of Auckland Park. Without money from Westerton, and if the Pursuer did not sell his house, the parties would have required to have borrowed more from their lender. In evidence, the Pursuer agreed that the "source of funds" used to purchase the former matrimonial home was from him, Westerton, the Defender and the Bank of Scotland. However, his position is that on the sale of the former matrimonial home, Westerton should be reimbursed its £100,000. This is how the Pursuer sees this matter and the tenor of the evidence that he gave in respect of it.

 

There are a number of points to make in relation to this:

i.                    The Pursuer, throughout his evidence equated himself with Westerton. When talking about Westerton, he frequently used the words "we" and "I" meaning "Westerton". The Pursuer, it was submitted, is Westerton. He is the sole shareholder and its controlling mind. He makes all of the decisions in respect of it. The Pursuer used (and uses) the veil of individual company personality to protect his own financial arrangements to his best advantage.

ii.                  While the Defender does not ask the Court to tear away that corporate veil, the Court was invited to look carefully at the evidence given by the Pursuer about the funding of the purchase of Auckland Park, and consider it in the context of the funding of the former matrimonial home. On the Pursuer's own evidence, he could not sell his home. On his own evidence, Westerton provided the "bridging" finance between the gap in funds from this failure to sell and the purchase of the former matrimonial home. On sale of his own home, he had sole control of these funds. He did not apply them to repay this "bridging" finance when his own house was sold a year later.

iii.                The £100,000 could only be advanced to the Pursuer by Westerton. The question then was how, as a matter of law, could this advance be made? It could not be legally advanced in the form of a director's loan--the Companies Acts prohibiting loans on this scale. Westerton had no title to the former matrimonial home and no security over it. The only appropriate way of looking at the advance of these funds was by considering them as being paid to the Pursuer by way of dividend. (see No. 5/2/3 of Process). However, had he obtained the funds this way, he would have been liable to tax on them. Had he paid the funds back into Westerton on the sale of his property, the company would have been taxed on its increased profits. Accordingly, he sought to avoid paying tax so far as he could, and had the funds shown in the company accounts an asset, albeit an asset in a category not known to Scots law, i.e. freehold property.

 

On this analysis, the appropriate way of looking at the "sources" of funds used to acquire the former matrimonial home is to consider that there were three; the Pursuer, the Defender and the Bank of Scotland.

 

These "sources" do not provide scope for an argument that special circumstances exist, such as to justify unequal division of that asset. The parties chose to purchase the property in their joint names. In the Pursuer's pleadings, he uses the phrase, "a one half pro-indiviso owner of the matrimonial home". (Closed Record, No. 35 of Process, page 11,line 31) The decision to take title in this manner is significant, especially in a short marriage such as this. In the case of Jacques v Jacques 1997 SC (HL) 20, this very matter was considered. The House of Lords determined that, regardless of the source of funds used to acquire this property, the choice by the parties to take the title equally between them was determinative of the matter. In the Defender's submission, there are no special circumstances justifying unequal division of the former matrimonial home under section 9(1) (a) of the Act in favour of the Pursuer. The Act takes account of the benefit of the acquisition of assets by one party from the other.

 

ii. Harewood Ridge Pension

 

The Pursuer gave evidence on the first day in respect of this matter. It was returned to, briefly, in his examination-in chief on other matters and in cross-examination.

 

The Defender submitted that the evidence on this point clearly shows that as at the relevant date, funds amounting to £80,000 were held on behalf of the Pursuer by CP Harewood Ridge. The evidence clearly established this money being withdrawn, from Westerton, on the Pursuer's instructions, to create a pension for him (see the Transcript p. 28 D, p. 38 C). This money was repaid to Westerton, it would seem later that year (see No. 5/4/2 of Process). However, as at the relevant date, this money was held by Harewood Ridge for the benefit of the Pursuer. It is in exactly the same position as money held in a bank account for the Pursuer's benefit, at the relevant date. Whether or not this was categorised as a pension fund or ever achieved that objective is irrelevant. On any view of it, this money was held for the benefit of the Pursuer at the relevant date. It is matrimonial property and requires to be included within the Schedule of such property and divided fairly between the parties.

 

iii Value of Net Matrimonial Property per Schedule

 

Excluding the parties' respective credit card debts noted on this Schedule, the net matrimonial property of the parties according to this Schedule therefore amounts to £920,880.10. As has been noted, the figure calculated in respect for the matrimonial property includes the Pursuer's investment at the relevant date of £80,000 in a proposed pension policy on his behalf. It also values the former matrimonial home at March 2008. In the event that the property is sold, the amount realised may not meet this valuation figure. These are troubled economic times and it would seem rash to make any prediction in the absence of clear expert evidence of current market conditions.

 

It is proposed that each party bears their own liability in respect of these credit card debts.

 

In relation to the Pursuer's SERPS pension fund, £1888, the evidence is that despite having been ordered by the Court to obtain a valuation of that and despite having had the forms for some time, this has not been obtained by the Pursuer. It was submitted that the Court should not accept as credible the evidence of the Pursuer that he has requested this information. There is no basis upon which the Court can have any confidence in the assertions of the Pursuer on such matters. The Pursuer has acted to conceal this asset at worst or obscure its value, as he has done with the Harewood Ridge investment and the £100,000 he took from Westerton by a method designed to avoid payment of tax upon it. The Court was invited to draw an adverse inference on the actions of the Pursuer in respect of these assets and reflect that in the orders made for financial provision. (see Coyle v Coyle 2004 Fam. LR 2)

 

Quantification

 

As was submitted earlier by the Defender, the starting point in her claim for a capital sum is to seek a fair division of the parties' net matrimonial property. However, in making any such order, the Court is not required to have regard only to s. 9(1) (a), but can also consider whether or not there are any other applicable principles in s. 9 as provided for by s. 8(2). The Court was invited to have regard in particular to s. 9 (1) (b) in determining the order for payment of a capital sum. It provides,

"fair account should be taken of any economic advantage derived

by either person from contributions by the other and of any economic disadvantages suffered by either person in the interests of the other person

or of the family."

Section 9(2) seeks to define what is meant by this principle;

"economic advantage" means advantage gained whether before or

during the marriage....and includes gains in capital, in income and

in earning capacity and economic disadvantage shall be construed

accordingly;

"contributions" means contributions made whether before or during

the marriage....and includes indirect and non financial contributions

and in particular any contributions made by looking after the family

home or caring for the family."

Section 11 (2) seeks to offer some insight into this principle;

"For the purposes of section 9(1) (b) of this Act, the Court shall have regard

to the extent to which:-

(a)         the economic advantage or disadvantage sustained by either person

have been balanced by the economic advantages or disadvantages

sustained by the other person, and

(b)         any resulting imbalance has or will be corrected by a sharing of he

value of the matrimonial property...."

 

Section 9(1)(b) might usefully be seen as providing a mechanism whereby the Court can take into account additional factors in weighing up the sum that is "justified" in the context of the legislation. (See Coyle supra) This is, of course, a balancing exercise for the Court. The Court may consider that there are competing economic advantages and disadvantages that might cancel one another out (see for example Welsh v Welsh 1994 SLT 828). The Defender submitted that, if these factors do not cancel one another out, then a claim under this "head" may be made. The Court may also consider that the imbalance although existing, can be corrected by a sharing of the matrimonial property in terms of s. 9(1)(a). (see Coyle supra)

 

This claim is capable of separate valuation. This may be illustrated most easily by those cases where there has been no matrimonial property and a capital sum has been "justified" using the principle in s. 9(1) (b) (see McVinnie v McVinnie (no.2) 1997 SLT (Sh. Ct) 12, De Winton v De Winton 1997 SLT 1118)

 

 

Claim under section 9(1) (b) of the 1985 Act

 

The Defender has, in addition to her claim in terms of s. 9(1)(a), a claim under s. 9(1) (b). It is important to note that in terms of this latter claim, s. 9(2) clearly provides that the economic advantage and disadvantage can be considered throughout the course of the marriage and is not confined to the period up to the relevant date. This is a very important consideration in this case. There have been very significant economic advantages and disadvantages upon the parties whilst still married, but no longer living together.

 

It was accepted that the Court must undertake a "balancing exercise" when considering this claim. However, it was submitted on behalf of the Defender that regard should be in particular to the following parts of the evidence in weighing up this balancing exercise.

i.                    The salary of the Defender whilst an employee of Westerton amounting to £9,600. This money remained within Westerton, adding to its retained profits, to the sole benefit of the Pursuer. The Defender suffered the economic disadvantage of not receiving the salary which the Inland Revenue clearly thought she was obtaining. It was not likely that she would be liable for either income tax or national insurance. This might be said on behalf of the Pursuer to be a clear case of one economic disadvantage being counterbalanced by enjoying the economic benefits of a lifestyle funded upon the profitability of Westerton. This would be true if seen in isolation and considered without regard to the other evidence in this case. However, the evidence of the Defender was that she was kept ignorant of the family finances and had very limited access to money. She did not "enjoy" the benefits of financial freedom consequent upon Westerton doing well. On the contrary, she felt subjected to a strict budget whilst the Pursuer has now enjoyed the benefit of that money being retained Westerton to his sole benefit.

ii.                  The half of the arrears of council tax over the former matrimonial home amounting to £1,007.46 for which the Defender is liable. Whatever one might think of the approach that this family had to its finances, the point is that the Pursuer was responsible for earning money and the Defender responsible for the home and children. It was the way in which things were done in this family. Inexplicably, the Pursuer stopped paying the council tax due over and in respect of the former matrimonial home. This was a bill he had previously met. By stopping it, he was financially advantaged by retaining this money. The Defender has been financially disadvantaged by now facing a substantial liability in respect of it. This was an act of pure malice, designed to make the difficult financial position in which the Defender found herself even worse.

iii.                The increase in the outstanding sums due to the Halifax as a consequence of the Pursuer's failure to make payment of that mortgage. In February 2008, the Pursuer stopped paying this mortgage. (see No. 6/6/8 of Process) In the event that the former matrimonial home is sold, the sums due to be repaid to the Halifax will be in excess of those within the Schedule. This will result in a very direct economic disadvantage to the Defender in that it will reduce the funds available from the net free proceeds of the sale. This, like the council tax, was a liability of the Pursuer. Furthermore, it was one that he undertook before the Court to pay; yet he failed to do so. He has had the economic advantage of the money being at his disposal rather than in the hands of the Halifax. By July of 2008, these arrears amounted to about £1,600. The Defender submitted that these sums might reasonably considered to amount to about £3,200 by the end of 2008.

iv.                 The Defender's indebtedness to her parents as a consequence of the Pursuer's failure to meet his alimentary obligations. This was aired in the evidence of both the Defender, and her mother, Mrs Taylor. Whilst there are no precise figures, the general impact of this failure is evidenced by the debts on credit cards and bank statements of the Defender. The position has been made worse by the Pursuer's attitude. The Defender will have to repay the amount in respect of the purchase of the car and will require to pay the Scottish Legal Aid Board ("SLAB").

v.                   The Defender borrowed from her parents in addition to having credit card debts and loans. There is the loan for her car, amounting to £15,000. There is, it was submitted, a very obvious clear economic disadvantage to the Defender. Taken together with her indebtedness to her parents as a consequence of her extensive legal bills, these have been incurred as a clear consequence of the manner in which the Pursuer has chosen to act in this case. Whilst this may be more appropriately dealt with at any expenses hearing, it was considered useful to have regard to them at this point in support of this submission. The Pursuer has refused to adhere to Court interlocutors. He has behaved in a manner contemptuous of these proceedings. He has acted against and without legal advice, protracting these proceedings. A particular example of this might be seen in the discussion before the Court at the beginning of this proof in respect of the children and the Joint Minute in this case. His attitude of dissembling, awkwardness and dishonesty has made these proceedings unnecessarily protracted. This has increased the cost of them to the Defender. This is regardless of the availability of legal aid. In the event of success in this case, SLAB will claw back its funding of this case from these proceeds. The legal expenses, excluding those due to SLAB, have totalled more that £70,000. Whilst not all of these might reasonably be attributed to the manner in which the Pursuer has conducted this litigation, regard should be had to a proportion of that total.

vi.                 The Defender's credit card indebtedness incurred as a consequence of inter alia the Pursuer's failure to meet alimentary obligations to her. Again, this might be seen most clearly when looked at in the context of the Interlocutor of this Court in April 2008 ordaining the Pursuer to pay the Defender £500 per month by way of aliment, but, at the date of submissions, she has seen not paid one penny of this. The Pursuer's attitude to this in his evidence was of contempt and smugness at his apparent ability to flout the authority of the Court and disregard his alimentary obligation taking pleasure, it seemed from his demeanour, in causing inconvenience and distress to the Defender. She has suffered the economic disadvantage of being without this money and increased her debts whilst the Pursuer has enjoyed the benefit of retaining it. These sums amount to in excess of £6,000.

 

The Defender has been a housewife and mother. She has not had the opportunity to establish a pension nor build upon her career. It was a joint decision to run the marriage on what might be described as traditional lines. Taking all of these factors together and balancing these against one another, in was submitted that there is clearly justification for the Defender to have a claim under s. 9(1)(b).

 

The issue then is to quantify that sum. It is not, as in a reparation case, a neat totting-up of figures. It should be seen as a balancing exercise looking at all the facts and circumstances of the case. The balancing exercise must begin from the point of assessing the "fair" division of the net matrimonial property. This figure must then be balanced having regard to the economic disadvantage sustained by the Defender, as outlined above.

 

In conducting this whole balancing exercise, the submission was that the figures that are appropriate in arriving at a capital sum are as follows:

 

The net matrimonial property amounts to £920,880.10

50% of this amounts to £460,440.05.

This is without regard to the Pursuer's SERPS valuation.

Section 9(1)(b) on a "totting up," produces a figure in excess of £100,000.

 

Accordingly, having regard to these figures, the Court should award a capital sum of a minimum of £460,440. Having regard to the Act, it would be difficult to support an argument for such a sum to exceed £560 440, but it was submitted that a fair capital sum in terms of s.8(1)(a), justified by the principles of s.9 and a reasonable exercise of the Court's discretion would be £550,000.

 

The submission was that this sum is also reasonable having regard to the respective resources of the parties. The Pursuer is plainly sufficiently well-off to enjoy the benefits of Westerton being able to buy him a house Kippford for £227,000 in 2008. There was no evidence of there being a loan in respect of it. There will be the net free proceeds from the sale of the former matrimonial home. No issue to date has been made by the Pursuer that his resources are insufficient to meet a capital sum awarded by this Court. He has resisted co-operating with the Defender' agents in disclosing his current financial position and no up-to-date bank statements have been lodged by him or other similar current financial information.

 

 

3. Payment of Periodical Allowance

 

The Defender seeks degree for payment by the Pursuer of periodical allowance of £500 per month for the next 3 years.

 

In addition to the financial provision sought by way of capital, the Defender seeks an award of periodical allowance. This is justified having regard to ss. 9(1)(c) and 9(1) (d).

 

It was submitted that this is reasonable. The Defender is a middle-aged women with a young family to care for, limited job skills and living in straightened economic times. She cannot be expected to continue to live hand-to-mouth on the charity of her parents. The payment of the capital sum is both inappropriate having regard to ss. 9(1)(c ) and 9(1)(d) and it is insufficient to meet the requirements of s. 8(2). The children will all be in school full-time in 2009.

 

 

4. Certification and Expenses

 

The Court was invited to award the Defender her expenses in this case and to certify the cause as suitable for the employment of junior counsel. The conduct of the Pursuer throughout this litigation is such as to justify this award. The presence of two junior counsel in this case is sufficient evidence, if any were needed, of the suitability of this case for the instruction of junior counsel.

 

 

3. DECISION.

 

Before dealing with the craves in this action, I make the following comments about the parties.

 

I did not find the Pursuer to be either credible or reliable and certainly when he was unrepresented, he was evasive and even when he was represented, he tried to avoid answering some questions put to him in cross-examination, albeit they were straightforward questions. The following are examples of his attitude to the Defender and the Court.

 

He has failed since 16 April 2008 to pay the mortgage and amenities for the former matrimonial home and to pay £500 per month to the Defender for aliment, all of which he undertook to do, as is reflected in the Interlocutor of that date.

 

He delayed obtaining a valuation for his SERPS pension, despite being ordained by the Court to do so. The total sum involved is £3,600, but his approach to this matter is in keeping with his attitude to the court order about aliment. He ignored it, until September 2008.

 

In evidence, during the morning of 9 July 2008, he stated that although money had been transferred from his bank account to a company called Harewood, it had been repaid later. At that point, whether or not the money had been repaid had some significance, but despite saying that he could produce a bank statement, he failed to do in the afternoon of that day. At that point, the evidence given by the Pursuer on oath might have had repercussions for him at a later stage. However, the bank statement was lodged only on the morning of 17 September.

 

At one point, he transferred the home telephone number to the Defender's name alone, but got someone to pretend that she was the Defender who had consented to this, a matter of which the Defender was unaware.

 

In the middle of one night in April 2007, he removed from the former matrimonial home a car which he knew was used by the Defender to transport his children. (Transcript, p. 15) That left the Defender without transport of her own that day and she had to replace the car which had been removed. Some of her possessions which were in the car have not been returned to her.

 

The Transcript reveals his attitude to the Defender. Referring to the possibility that he might instruct counsel, the Pursuer said, "...if I get ripped apart, she will get ripped apart." (p. 29) "I will get a Q.C.... [The Defender] will get ripped apart, her father is going to get ripped apart... [W]e need to get things back in a level playing field or it will be pistols at dawn or may be not even at dawn." (p. 49)

 

He has not lodged in Court, nor disclosed to the Defender his current financial position.

 

The Pursuer's demeanour in the witness box, his persistent failure to implement his own undertaking in respect of the mortgage etc., and his attitude to his children on the occasion just mentioned left me with a very unfavourable impression of him. I have little confidence that he would comply with any order of the Court without being obstructive. The Pursuer's attitude has prolonged this action unnecessarily, and that is reflected in an award of expense in favour of the Defender.

 

By contrast, the Defender has conducted herself in a restrained manner and throughout, her language and behaviour were moderate. I found her to be both credible and reliable as was her mother.

 

I now turn to the Craves.

 

Apart from craves relating to the children of the marriage, the Pursuer seeks (a) decree of divorce, and (b) an order requiring the Defender to transfer her share of the former matrimonial home to the Pursuer. The Defender also has craves relating to the children, but seeks (a) an order for the sale of the former matrimonial home, (b) payment of a capital sum of £550,000 and (c) payment of a sum of £3,500 per years for three years, or such lesser period as the court may think fit, by way of periodic allowance

 

1. Divorce.

This is the Pursuer's first crave. On 9 July 2008, the Defender consented to divorce. (No. 37 of Process) Given the evidence of the Pursuer, the Defender and her mother, and having considered the Affidavits (Nos. 11-15 of Process) I am satisfied that the marriage has broken down irretrievably and that there is no prospect of reconciliation. I shall therefore grant decree of divorce.

 

2. Residence and contact.

 

The Pursuer's second crave and the Defender's first crave is for a residence order. The Pursuer's third carve is for residential contact. Residence and contact were dealt with in an Interlocutor of 9 July 2008. The parties seem to be able to agree between themselves both contact and residential contact for the children. I was accepted that no further orders are required. The pleas-in-law relating to these matters will be repelled.

 

3.             Sale or transfer of the title to the former matrimonial home.

 

The Pursuer's fifth crave is for an order for the transfer to him of the Defender's interest in the former matrimonial home; the Defender's fourth crave is for its sale. Even the Pursuer, in his evidence, accepted that a sale of the former matrimonial home should take place. I shall therefore make an order to that effect. I would add that it would not have been open to me to make an order transferring the title, until such time as the Halifax, as the secured lender, had given its consent. Even if that consent were in place, while I have no doubt that the Defender would execute the necessary disposition transferring her share, it is not in dispute that the Defender is due a capital sum to be paid by the Pursuer. As I have said, I have little confidence that the Pursuer would pay the capital sum, without being obstructive.

 

The parties have agreed on a firm of solicitors to act in the sale. In order to avoid, or at least minimise, any problem in relation to payment to the Defender, I have ordained the solicitors who are to be instructed in the sale to lodge the free proceeds with the Sheriff Clerk. The free proceeds with therefore be under the control of the Court, and the parties can apply to the Sheriff Clerk for disbursement of the funds so held.

 

4.             Capital sum to be paid to the Defender.

 

As amended, the Defender's fifth crave is for payment to her by the Pursuer of a capital sum of £550,000. In that connection, distinct but related chapters of the evidence dealt with the following:-

 

(a) The financing of the purchase of the matrimonial home and the related topics of the status of the £100,000 which came from the Pursuer company as part of the price.

(b) The Harewood pension.

(c) The parties' credit cards.

(d) The Defender's contribution to the running of the Pursuer's business.

(e) The method of financing the running of the matrimonial home.

(f) The financial support received by the Defender from the Pursuer since their separation and the related topics of aliment and the involvement of the Child Support Agency.

 

(a) The £100,000 as finance for the purchase of the matrimonial home

The matrimonial home was purchased in 2004 with a date of entry of 20^th July 2004. No. 5/2/2 of Process is a cash statement of Messrs Paull & Williamsons, Solicitors, Aberdeen in respect of that purchase. It discloses that the purchase price including fees and outlays was £558,058.50. The Pursuer contributed £69,851, the Defender £32,150, there was a secured loan from the Halifax of £354,982 and the statement shows an entry "cash from you, £100,000." No. 5/2/1 of Process is a receipt for that sum which states it came from Westerton Limited on 19^th July 2004. It is shown as "freehold property" in the accounts of Westerton for the years to 31^st March 2005, 31^st March 2006 and 31 March 2007. (Nos. 6/6/10,11 12 of Process).

 

The Pursuer's position has always been that this £100,000 was a loan from the company to the Pursuer and the Defender and it is repayable by them. The Pursuer accepted that he could have taken the £100,000 from the company as a dividend, but did not do so because he would be liable to pay tax on the dividend. However, his position in relation to how much is due to the company has varied. At one point in his evidence, he said that the £100,000 had to be repaid, but at another, he said that the £100,000 was a proportion of the purchase price and accordingly a pro rata proportion of the sale price was due to Westerton. Pursuer's counsel accepted that, if any sum was due to be paid out of the free proceeds of any sale, only £100,000 was due.

 

There is lodged in process (No. 5/2/3) a letter from Messrs Bothwell & Company to the Pursuer dated 12^th December 2005 which purports to set out the position of this loan. "The £100,000 payment for part of 302 North Deeside Road is shown as freehold property rather than a dividend. This obviously means that if you come to sell the property, a portion of the sales proceeds must be paid to the company."

 

It seems on the face of the accounts to be an asset of the company and it was obviously used to fund the purchase. However, I believe the Defender when she said she did not know at the time where the £100,000 had come from and in these circumstances she could hardly have agreed that that £100,000 was repayable by the two of them.

 

There is no doubt that the former matrimonial home could not have been purchased without the £100,000. It may be that that sum could have been part of a larger amount borrowed from Halifax, but it came from Westerton. Given the amount, it could not be a loan to a director. If it were a dividend, tax would be payable. If it had been repaid to the company when the Pursuer sold his home in Westerton Avenue, the company might have been liable for tax.

 

The "loan" of £100,000 is not properly constituted, it is not secured over the former matrimonial home, nor is the injection of that amount reflected in the title to the property. It is a matter of admission that the title stands in the joint names of the Pursuer and the Defender. (No. 36 of Process, para. 3(i).) and on record, it is averred by the Pursuer that, "[t]he Defender is a one-half pro indiviso owner of the matrimonial home." (No. 35 of Process, Article 9 of Condescendence, penultimate and last lines.)

 

That being so, it was decided by the House of Lords in Jacques v. Jacques that the s. 10(1) presupposes that, if special circumstances are not made out, the division of the matrimonial property will be equal. The submission for the Pursuer was that the property could not have been purchased without the £100,000, and reference was made to s.10(6)(b) of the 1985 Act concerning "the source of the funds." While it is probably true that the purchase could not have gone ahead without the £100,000, I am not persuaded that that, of itself, is amounts to special circumstances, particularly when in Jacques, the matrimonial home was purchased solely by funds provided by the defender, and yet it was held that as the title was in joint names, the free proceeds would be divided equally between them. The "source of the funds" is the place to start, but that is not determinative of the issue as Jacques makes clear. If the Pursuer had intended the £100,000 to be repayable by the parties from the free proceeds, I would have expected him, at the very least, to have explained that to the Defender which he did not. Even if he had not done that, would have expected him to take steps to secure the company's position in some way more patent and reliable that an entry in the company's accounts, which is inaccurate. The £100,000 part of the purchase price could not be the Scottish equivalent of freehold property, but should have been shown in the accounts as a debt due to the company by the Pursuer. There may be a reason for the entry, but that is not germane to this action. I do not accept the Pursuer's evidence that this was a loan to the parties and I have no doubt that the Pursuer intended that the £100,000 be put towards the purchase price, just as the Defender did with the proceeds of the sale of her former property, and was not expecting the company to be repaid, except possibly by him. When he sold his former home, he could have repaid the company at that point, but did not do so. It follows therefore that, in the event of the former matrimonial home being sold, the net proceeds are to be divided, without first deducting the £100,000.

 

The £100,000 is still shown in the company's accounts and the value of the Defender's shares in the company, viz:- £3596.97 is calculated with reference to that being an asset of the company. I can see no reason for discounting the value of her shares on the ground that the value of the former matrimonial home includes that £100,000. In any event, the figure involved in such a discounting would be minimal.

 

 

(b)          Harewood "Pension."

This sum was paid out of the company's bank account on 31 March and returned to that account on 12 July, both 2007. The Pursuer's evidence on this matter was inconsistent. On the first day of the proof, his position was that the £80,000 was transferred from Westerton's bank account "to create" a pension for him. (Transcript p. 28) That was stated just prior to the adjournment for lunch. By the afternoon, his position was that the £80,000 had been transferred "on the possibility" that a pension might be created. (Transcript p. 39). The Pursuer's submission was that there never was a policy, that the sum was not in the name of either of the parties, and its source was the company, rather than the marriage. Accordingly, it ought to be left out of account on the basis that it was not a matrimonial asset at the relevant date, and further that regard had to be had to the source of funds, as mentioned in s. 10(6) of the 1985 Act.

 

In my opinion, it is of no consequence that a pension was never created. The funds were transferred from the company on the Pursuer's instructions and the funds remained subject to his instructions, (albeit as "Westerton,") as is evidenced by the transfer back to the company on his instructions so that, if the Pursuer is to be believed, the company could purchase equipment. The sum of £80,000 was at the Pursuer's disposal between the two dates mentioned. That being so, it is matrimonial property.

 

(c)          Credit Card debts.

 

It was accepted that each party should bear their own responsibility for their credit card debt.

 

The sum to be awarded to the Defender under s.8(1)(a) with reference to the principle set out in s.9(1)(a) is £442,240.05, which is the figure agreed in the Joint Minute of Admissions (No. 36 of Process) as 50% of the net value of the matrimonial property, but adding thereto 50% of the value of the Pursuer's SERPS and 50% of the "Harewood pension" figure.

 

The remaining headings of the Defender's contribution to the running of the Pursuer's business, the method of financing the running of the matrimonial home, and the financial support received by the Defender from the Pursuer since their separation and the related topics of aliment and the involvement of the Child Support Agency, all turn upon the calculation of any capital sum due by the Pursuer to the Defender.

 

It is accepted that a capital sum may be payable under s. 8(1)(a) and that the principles for determining the calculation are set out in s.9(1) of the 1985 Act. Section 9(1)(a) provides for "fair sharing" and in terms of s. 10(1), that means equal sharing, unless there are special circumstances. The Defender submitted that she has suffered economic disadvantage with a corresponding economic advantage to the Pursuer.

 

Section 9(1)(b) requires the court to take account of any economic advantage derived, or any economic disadvantage suffered. It is not necessary for there to be a corresponding economic advantage to any such disadvantage. The Act speaks of "contributions" made by a party and in s. 9(2), that is defined as including, "indirect and non-financial contributions and in particular any contribution made by looking after the family home or caring for the family." If any economic advantage or disadvantage is identified, the court is required in terms of s. 11(2) to determine whether the one cancels out the other, as in Welsh v. Welsh 1994 SLT 828, and hence an award can be made only if there is an imbalance. That point was made by Lady Smith in Coyle v. Coyle 2004 Fam. L.R. 2 at 9 (para. 37). Clearly, the onus rests on the Defender in this case to establish that there has been an economic disadvantage and that an imbalance exists. A spouse's conduct is relevant only if it has adversely affected the resources of the parties.

 

The Pursuer's general proposition was that the Defender would leave the marriage with £370,000 at least which was financial growth on a "substantial scale." She had had to seek employment, but rather was able to stay at home and look after the children. Accordingly, there was no economic disadvantage. I do not accept that position. The substantial growth can in large measure be attributed to the increase in value of the former matrimonial home from the time of purchase to the relevant date. However, the cost to the Defender of purchasing alternative accommodation will also have increased substantially. There is no doubt that the Defender did not require to seek employment, and was able to look after the children which she was happy to do. However, she may, at some point, require to seek employment and her age and lack of formal qualifications will be a factor in determining how easy it will be for her to be re-employed. That is economic disadvantage within the meaning of s. 9(1)(b).

 

The economic disadvantage suffered by the Defender, it was submitted, arises under the following headings:- (i) her salary which was retained by the company and not paid to her; (ii) she was kept ignorant of the household finances and had limited access to money; (iii) the Pursuer stopped paying Council tax despite agreeing to do so, thus giving him the advantage of the use of the sums not paid; (iv) he undertook to pay the arrears of the mortgage, but did not do so; (v) as a result of not receiving payment of aliment, the Defender incurred further debt, including money due to her parents, inter alia in respect of legal fees; and (vi) the Pursuer has not paid aliment since April 2008, despite undertaking to do so. The sums involved under these headings amount to approximately £100,000. There can be little doubt that the Pursuer could have afforded to make the payments which he undertook, not least because in 2008, his company purchased for him a property at Kippford, without a loan, the purchase price of which was £227,000. As he is the controlling influence in the company, that property is for his use and enjoyment.

 

(i)the salary. It is not in dispute that the Defender was awarded by the company a salary of £9,600, (£4800 per year for 2 years) and that it has not been paid. The Defender submitted that the Pursuer, though his company, secured an economic advantage by retaining that sum. The Pursuer submitted that the remuneration was for 2/3 days' work at an offshore oil exhibition in 2005, and for dealing with e-mails and telephone calls. Furthermore, the Defender had benefited from the Pursuer's industry throughout the marriage and should not benefit twice. Lastly, the entry in the company' accounts may be "creative accounting" and the Defender, rather than benefit from that ought to distance herself. The claim was not therefore a claim under s. 9(1)(b), but was rather of a contractual nature.

 

I do not accept the Pursuer's position. Whether or not the Defender benefited from the Pursuer's industry throughout the marriage may be a matter of debate, but even if it is correct, that is not a good reason for not paying the Defender what she was given to believe she would be paid, no matter how little she may have done for the money. She was not a party to any "creative accounting" which the company indulged in and would not therefore be sullied by taking the salary. The Pursuer has had the benefit of this sum, to the Defender's detriment.

 

(ii)               arrears of council tax of £1007. It is not in dispute that the Pursuer used to pay the council tax, but, without advising the Defender, ceased to do so; hence the arrears. One half of the arrears is due by the Defender. The Pursuer's response is that the amount is minimal and that the local authority will take the necessary action to recover what is due.

I accept that the amount is minimal, but again the Pursuer has had the advantage of retaining it, to the Defender's detriment. That said, the extent to which the Pursuer has benefited is the interest which he would have earned on the retained sum, and there was no evidence which would allow me to calculate that, nor was there any evidence about the extent to which the arrears have increased owing to that failure. Any award would be minimal and be as a result of speculation. In examination-in-chief, the Pursuer did accept that this sum was due to the Defender, but given what I have just said, it would be unfair on him to require him to pay the £1007.

 

(iii)             Increase in the arrears of mortgage. The Defender's position here is exactly the same as that in relation to the arrears of council tax, except that the sum identified (which was not challenged) is the increase in the arrears. Again, the Pursuer ceasing paying, without advising the Defender. It was indicated that by the end of 2008, the arrears would had increased by about £3200, of which one half would be due by the Defender. The Pursuer's response was that the amount was insignificant, and that the arrears will be deducted once the property is sold, he had not benefited from the arrears, and that it was a claim for aliment disguised as a claim under s. 9(1)(b).

 

Again, I am of the opinion that the Pursuer has benefited from having the use of the funds which he has not paid to the lender, and to the Defender's detriment. Here the Pursuer has benefited in having the interest which he would have earned on the retained sum, and there was no evidence which would allow me to calculate that. However, the detriment to the Defender is that the amount to be deducted in respect of the Halifax loan has been increased by £3,200 of which her share would be £1,600. The Defender ought to be compensated for that, in that it would be unfair if the total arrears were deducted in determining the free proceeds without taking account of the conduct on the part of the Pursuer which increased the amount of the arrears.

 

(iv)           Defender's indebtedness to her parents. She is obliged to repay £15,000 which was lent to her for the purchase of a replacement car. Her parents have also been paying the Defender's solicitors' fees and outlays. At February 2008, the figure was £32,999.99 (No. 6/6/6 of Process) and at the date of the proof, the total sum was in excess of £70,000. These figures were not challenged. The Defender's submission was that she incurred that expense solely because of the Pursuer's failure to pay aliment. She accepted that she had not applied for aliment until April 2008, and had not been awarded Legal Aid until some time between July and September 2008. The Pursuer's response was that she could have applied for both earlier, but the claim was one for legal expenses under the guise of a claim for aliment, under the guise of economic disadvantage.

 

There cannot be any dispute that the Defender could have applied to the court at an earlier stage for aliment and could have applied earlier for Legal Aid. That said, it would, in my view, be harsh to penalise her for entertaining the hope (forlorn as it was) that the Pursuer might agree to an amicable settlement, if only in the interests of the children. I believe the Defender's mother when she said that the sums lent to the Defender would have to be repaid. The Defender was at an economic disadvantage by not receiving the aliment which the Pursuer undertook to pay. He has had the benefit of the retained funds. He knew or ought to have known enough about the Defender's finances to appreciate the effect that his failure to pay would have. This was no oversight on the Pursuer's part, but a deliberate attempt to inconvenience the Defender. In the letter dated 15 July 2008, (No. 6/10/1 of Process) the Defender was willing to accept £50,000 in respect of these debts which is not an unreasonable claim, and I shall award that amount to her.

 

(v)             The Defender's credit card indebtedness. This amounts to over £6000 as at 3 March 2008 (No. 6/710, 11,12 of Process). The Defender says that this was incurred, again, because of the Pursuer's failure to pay aliment etc. His response was that there was no evidence of the amount due at the relevant date, and, in any event, it is a claim of an alimentary nature. I accept the Defender's submission and reject that of the Pursuer for the reason given in the foregoing paragraph.

 

I need not say much about the involvement of the Child Support Agency. Fortunately, for the Defender, payments of identified sums are now being paid and paid regularly. That took a while, and while there was uncertainty about the amount which was due and when it would be paid, the Defender could not budget properly. That delay was, in large measure, caused by the Pursuer who knew or ought to have known about the effect on the Defender's finances of her not receiving regular payments form the CSA.

 

I am of the opinion that the Defender has suffered an economic disadvantage within the meaning of s. 9(1)(b), in respect of these items and that although the Pursuer has had the economic advantage of retaining sums which he ought to have paid, there is a considerable imbalance. For reasons given below, I have decided not to award the periodic allowance which the Defender seeks, but, in my view, given her age and the age of her children, and her limited employment prospects not least in the current economic climate, the Defender ought to be compensated under s. 9(1)(b), rather than under s. 9(1)(c) or (d).

 

In terms of s. 9(1)(b), I will award the Defender the following:-

 

(i) salary £ 9,800

(ii) one half of the increased mortgage arrears £ 1,600

a.      the amount borrowed from her parents to buy a car,

and to pay legal fees £50,000

(iv) the loan to pay off the credit card £ 6,000

(v) limited employment prospects £10,000

 

Total £77,400.

 

Adding that to the amount which I have awarded under s.9!)(b) given a final figure of £539,640.05.

 

5. Periodic Allowance.

 

I accept the Defender's submission about her employment prospects, given her commitments to her children who are still relatively young. I am satisfied that the Defender comes within s.9(1)(c) and (d)., but s.13(2)(b) provides that an award of a periodic allowance ought to be made only if the court is satisfied that any capital sum awarded under s.8 would be inadequate. Had I been of the view that a periodic allowance would have been appropriate, I would have awarded the sum sought, for 3 years. However, I am of the opinion that the capital sum which I have awarded will be sufficient to allow her to purchase another suitable property, and it will still leave her capital to invest. Even in these straightened times, that will provide her with sufficient support until such time as she is able to seek employment, once more. (While this is not a factor which I can take into account in determining whether or not to award a periodic allowance, I would observe that I would have little confidence that the Pursuer would pay any such allowance without making the recovery of the allowance as difficult as possible for the Defender.)

 

(6) Certification.

I was asked to certify the cause as suitable for the employment of junior counsel. The financial issues were of some complexity, and that would justify that employment, but the attitude of the Pursuer was such that the involvement of counsel assisted the court greatly.

 

(7) Expenses.

 

While it is common in family cases is to make no award of expenses, I shall award the Defender expenses as this litigation has been, if not necessitated, certainly prolonged to a very considerable extent by the Pursuer's intransigence, and his failure to comply with court orders.

 

I am grateful to counsel for providing written submissions prior to oral ones. Both assisted me in my deliberations.