Scottish Sheriff Court Decisions

A15/08

SHERIFFDOM OF LOTHIAN AND BORDERS AT DUNS

JUDGMENT

of

SHERIFF PETER G. L. HAMMOND

in causa

LEANNA MARY SELKIRK, residing at care of 9 Church Street, Eyemouth, Berwickshire, TD14 5DH (Assisted Person)

PURSUER

against

ROBERT ANDREW CHISHOLM, residing at 2 Gunsgreen Hill Cottages, Eyemouth, Berwickshire, TD14 5SF. (Assisted

DEFENDER

Act: Ms. Brabender, counsel

Alt: Mrs. Innes, counsel.

DUNS, November 2010.

The Sheriff, having resumed consideration of the cause:

FINDS IN FACT:

(1)   The parties are as designed in the instance. They met and formed a relationship in or about June 1998. In or around October 1998 they became engaged to be married.

(2)   The parties viewed a property for sale at 2 Gunsgreen Hill Cottages, Eyemouth ("the house") in or about February 1999. The house was subsequently purchased in the defender's sole name in or about April 1999. The purchase price of £43,999 was funded by a deposit of £2,000 paid by the defender, and a mortgage from Newcastle Building Society of £41,999 secured over the house.

(3)   The house was bought in contemplation that the pursuer and defender would live there together. Within a few days of obtaining the keys, they moved in together.

(4)   The parties cohabited at the house continuously from Spring of 1999 until 6 March 2008, when they separated. They lived together there as if they were husband and wife. They were cohabitants as defined by section 25 of the Family Law (Scotland) Act 2006. There are no children of the relationship.

(5)   Prior to moving in to the house, the pursuer resided with her mother at 9 Church Street, Eyemouth and the defender resided with his mother at 4 The Crofts, Ayton.

(6)   Both parties contributed to the furniture and plenishings in the house. When the parties moved in together the pursuer provided inter alia bedding, an iron and ironing board, a kettle, toaster, mops, buckets, cutlery and crockery. At later dates she bought a nest of tables, a coffee table, two bedside cabinets and a TV stand. The defender provided inter alia a fridge-freezer, a three piece furniture suite and a TV.

(7)   In or about August 2006, the defender re-mortgaged the house. On or about 4 August 2006, the mortgage outstanding to Newcastle Building Society was £33,976.59. The defender secured a mortgage with Northern Rock of £73,500. This was used to redeem the mortgage with Newcastle Building Society and invest in his new business.

(8)   When the parties ceased to cohabit on 6 March 2008, the house was worth £97,500 and the balance of the mortgage outstanding to Northern Rock was approximately £71,558. At that time, the equity in the house was approximately £25,942. The increase in value of the house between the date of purchase and 6 March 2008 was entirely due to market forces.

(9)   At the commencement of the parties' cohabitation, the pursuer was unemployed. She had no savings or capital assets. At that time she was in debt to the Bank of Scotland in respect of a £2,000 loan which she was repaying at £71.70 per month

(10)The pursuer began working at Curry's Electrical Retailers in or about Summer 1999, and remained in their employment until mid April 2000.

(11)Between about 8 May 2000 until 31 March 2006, the pursuer was employed by Goldsmiths, a retail jewellery store. When the store closed down, she was made redundant and received a redundancy payment of £825.00.

(12)From about 3 April 2006 until the cessation of the parties' cohabitation on 6 March 2008, the pursuer was employed on a full time basis with ESS Support Services. In the financial year 2006/2007 her gross salary was £10,889.84 per annum. In the financial year 2007/2008 her gross salary was £12,121.20 per annum.

(13)At the commencement of the parties' cohabitation, the defender was employed by the John Martin Group in Edinburgh as a motor vehicle panel beater and spray painter. He remained in that employment until about 22 December 2004. His earnings from employment to 22 December 2004 (in the financial year 2004/2005) were £14,336.

(14) From about 1 January 2005, the defender was self-employed. He set up R Chisholm Vehicle Body Repairs ("the business"), a panel beating and paint spraying business. The financial position of the business in the financial years ending 31^st March 2005, 31^st March 2006, 30^th April 2007 and 30^th April 2008 was as set out in the accounts of the said business (lodged as production 5/1/11).

(15)In or about May 2006, the defender purchased subjects at Acredale Industrial Estate, Eyemouth, as purpose built premises for the business. The purchase price of the land was £5,000. The defender purchased a kit building, and erected it, along with associated services on the land. The total cost of the land and buildings was £43,622.43.

(16) The turnover of the business in the 3 months to 31 March 2005 was £2,466 generating a gross profit of £1,981 and a net profit of £276. During that period, the defender introduced £6,029 of capital in the form of plant & machinery, motor vehicles and office equipment, and took drawings of £156. The balance of his capital account at 31 March 2005 was £6,461.

(17)The turnover of the business in the year to 31 March 2006 was £19,456, generating a gross profit of £16,005 and a net profit of £8,395. In that financial year, the defender took drawings of £8,285. The balance of his capital account at the financial year end was £6,571.

(18)The turnover of the business in the year to 30 April 2007 was £28,973, generating a gross profit of £14,716 and a net profit of £5,109. During that financial year the defender introduced £39,697 of capital in the form of buildings and equipment, and took drawings of £10,686. The balance of his capital account at the financial year end was £40,691.

(19)The turnover of the business in the year to 30 April 2008 was £58,970, generating a gross profit of £29,062 and a net profit of £16,759. In that financial year, the defender took drawings of £12,084. The balance of his capital account at the financial year end was £45,366.

(20)The defender inherited £20,693.30 on or around 18 October 2004. On that date, he paid £20,375 into his Royal Bank of Scotland Royalties account number 00127327, which was then in overdraft in the sum of £3,404. On 26 October 2004 he transferred the sum of £15,000 into an instant savings tracker account number 00147123.

(21)As at 6 March 2008, the defender had two personal bank accounts with the Royal Bank of Scotland, namely an Instant Savings tracker account 00147123 with a balance of £759.47 in credit, and a Royalties account number 00127327 in debit.

(22)As at 6 March 2008, the defender had a pension with Standard Life through the John Martin Group Pension and Life Assurance Scheme. As at that date, it had a value of £9,761.60. The defender became a member of that scheme on 1 April 1999 as a result of his employment with the John Martin Group. It was funded by contributions from the employer, and contributions from the defender which were deducted by the employer from his pay.

(23)As at 6 March 2008, the defender had a pension investment fund with Scottish Widows plan number 2576922. The value at 27 April 2008 was £559.09.

(24)At the commencement of the parties' relationship, the defender had a pension with AMP Pearl. It had a value of £9,296.33 as at 1 April 1999. In about August 2002, he obtained compensation as a result of having contributed to that pension plan rather than becoming a member of his then employer's pension scheme. That compensation was in the sum of £5,613. The compensation was calculated on the basis of the benefits which the defender had lost out on as a result of not being in his employer's pension scheme from 1^st December 1990 to 1^st June 1997. The defender transferred his pension from Pearl to Scottish Life in December 2009.

(25)On 3^rd October 2005, the defender surrendered a Pearl Bonus ISA account number 60061246. He received the sum of £686.24.

(26)On 2^nd August 1999, a loan account was opened in the defender's sole name by First National Bank plc and debited with the sum of £2,067.17 to be repaid by one payment of £74.73 and 119 monthly payments of £44.73 commencing on 2 September 1999. The loan was taken out to pay for double glazing at the house.

(27)The pursuer and defender maintained separate bank accounts.

(28)The defender paid all the household bills including mortgage, utility bills and council tax. The pursuer was not asked to, and did not, contribute a share of these bills. The pursuer contributed to the cost of food by paying for the monthly "big shop", and sharing the cost of smaller food shopping at other times.

(29)The pursuer did not have a chequebook facility on her bank account. The defender asked the pursuer to contribute to the cost of telephone calls to international or mobile numbers, which she did in cash. The pursuer also gave the defender cash to make payments to her Next personal shopping account.

(30)Both parties contributed to the cost of decorating and carpeting the house. In about Spring 2006, the pursuer used money from her redundancy payment to pay for carpeting of two rooms upstairs and for decoration of the lounge and bedrooms. The defender used money from the proceeds of an insurance payout to also buy carpeting for the house.

(31)Both parties shared the domestic household chores. The defender did the exterior and outdoor jobs such as gardening. The pursuer did most of the cleaning, laundry and ironing. The parties shared the cooking.

(32)The pursuer had no involvement in the day to day running of the defender's business, beyond occasionally answering the telephone and passing on a message to him. She did not do typing or other office work for him. She was not consulted on business matters or involved in decision making. When the defender bought a computer for the business, the pursuer initially showed him how to switch it on and demonstrated the basics of how to operate it. Louise Buglass showed the defender how to use the computer for business tasks and set up templates for his invoices and letterheads. The defender later obtained further help with the computer from Peter Anderson.

FINDS IN FACT AND LAW:

It not having been established in respect of the parties' cohabitation that the defender has derived economic advantage from the pursuer's contributions, or that the pursuer has suffered economic disadvantage in the interests of the defender, an order for payment of a capital sum is not justified by the principles in section 28 of the Family Law (Scotland) Act 2006, and the defender is entitled to be assoilzied from the craves of the Initial Writ.

THEREFORE sustains the defender's first plea in law; Quoad ultra repels the parties' pleas in law; assoilzies the defender from the craves of the Initial Writ; reserves meantime all question of expenses, and appoints the parties to be heard thereon on at a.m. within the Sheriff Courthouse at .

NOTE

Introduction

[1.] In this action the pursuer seeks payment of a capital sum in terms of section 28(2)(a) of the Family Law (Scotland) Act 2006 ("the 2006 Act"). In the course of submissions counsel for the pursuer indicated that she was not insisting in crave 2, which related to the furniture and plenishings within the house.

[2.] It was not in dispute that the parties were cohabitants in terms of section 25 of the 2006 Act. They formed a relationship in about June 1998, and became engaged to be married in about October 1998. They cohabited together at 2 Gunsgreen Hill Cottages, Eyemouth, from the Spring of 1999 until the relationship came to an end with the parties' separation on 6 March 2008. There were no children of the relationship.

[3.] I heard evidence on behalf of the pursuer from the pursuer herself, Nicola Fletcher, Eva Newman and Claire Mabon. I also heard evidence from the defender himself, and from his witness, Isabella Anderson.

[4.] In addition, the parties entered into an extensive joint minute agreeing a wide range of financial matters. These are reflected in my Findings in Fact.

Pursuer's Evidence

[5.] The pursuer gave evidence that she first got to know the defender when they were both working for the same employer in about 1995. They started a relationship in June of 1998, while both parties were living with their respective mothers. According to the pursuer, following their engagement in October 1998, they discussed getting married and April 2000 was discussed as a possible date. Although nothing ever came of it, the pursuer's expectation was that they would marry at some point. They decided to live together and started looking for a house in about January or February 1999.

[6.] The parties viewed the house together, and decided to submit an offer, which was successful. At that time, the defender was in full time employment, but the pursuer was unemployed and dependant on State Benefits. It was therefore decided that title to the house would be taken in the sole name of the defender.

[7.] The parties obtained the keys of the on 31 March 1999 and moved in the following day, after it had been cleaned.

[8.] The pursuer brought with her a number of items from her mother's house; bedding, an iron, kettle, toaster, mops, buckets, an ironing board, cutlery and crockery. The defender bought a number of items for the house, including a fridge-freezer, a three piece suite and a TV.

[9.] For the first month or so, the pursuer was unemployed and on benefits. During this time she was dependant on the defender. He was paying most of the household expenses and she was only able to assist by buying a little food. Thereafter, the pursuer got a job with Curries in Berwick on Tweed for 30 - 35 hours per week and earned approximately £180 per week. She would contribute approximately £400 per month to the household by way of cash payments towards the gas, electricity, food, mortgage, Council Tax and telephone bills. There was no pooling of finances. At the defender's wish, they kept separate bank accounts. Her salary was paid into her bank account, but it was easier to contribute in cash because she did not have a cheque book. She would use her cashline card to withdraw cash and give it to the defender week by week. She was referred to bank statements showing the pattern of withdrawals in cash. On top of that, she would give him occasional sums from time to time to meet bills such as for the Sky TV subscription. She had not set up a standing order from her bank to the defender's account because she "never thought it would come to this".

[10.]        The parties did a "big shop" for food once a month. This would be to the value of approximately £100 to £150. The pursuer paid for this from her salary. There would be smaller weekly shopping expeditions in between. The parties would share the cost of these.

[11.]        Her relationship with the defender was "very old fashioned". He would cut the grass and do any exterior or outdoor jobs. She would look after the house, and do all the cooking, cleaning, laundry and ironing tasks.

[12.]        Between May 2000 and March 2006, the pursuer was employed with Goldsmiths. Her net earnings were approximately £600 per month. She estimated that from that sum she would contribute approximately £400 per month towards household expenditure.

[13.]        In December 2004, the defender left John Martin Group and set up his own business. Although the defender's income had been less initially, she was supportive of his business venture, and they simply cut back on entertainment and socialising.

[14.]        In October 2004, the defender inherited £20,693.30. The inheritance was invested in the business. In May 2006, he purchased land and built new business premises. The defender talked to the pursuer about this decision, but did not tell her that he was funding the project by re-mortgaging the house.

[15.]        The pursuer's evidence was that she assisted the defender in the day to day running of the business. She would take phone calls and messages for the defender. She has a secretarial qualification. She typed bills, invoices and on one occasion she typed a letter to the Council. When the defender bought a computer for the business, she showed him how to work it. She continued to type letters and deal with the defender's telephone calls up until as point about 6 months before the separation, when he locked her out of the computer. She would support him in other ways when he was working long hours at the business. For example, she would make his evening meal and telephone him when it was ready.

[16.]        When the pursuer was made redundant from Goldsmiths in March 2006, she received a redundancy payment of £825. She used this to carpet two rooms upstairs and decorate the lounge and bedrooms. She spent £405 on the carpets and approximately £500 on the decorators. She bought a nest of tables, a coffee table, and a TV stand from her own salary. The defender also paid for carpeting from an insurance payout he received.

[17.]        She quickly obtained other employment with ESS Support Services at Torness Power Station, which began on 3 April 2006. Her income there was slightly more than she had been receiving latterly at Goldsmiths. Her take home pay was £928 net per month when she started with ESS. She continued to work at Torness until the end of the relationship. During this period she paid more to the defender by way of her contribution to food, telephone bills and luxuries such as holidays and meals out. She would buy more and better food, and share the cost equally with the defender.

[18.]        The pursuer did not have any credit cards during the course of the relationship. However, prior to her meeting the defender, she took out a Bank of Scotland loan for £2,000 to clear an old credit card debt. She repaid this in instalments of £71.70 per month, and the loan was fully repaid by about 2003. She did buy things from the Next Directory, but not have a Next store card. She would give the defender the cash for the purchase, and the defender would then write a cheque on her behalf for that amount.

[19.]        The pursuer stated that she "did not know to this day" why the relationship had broken down. She had only become aware that there was a problem with the relationship shortly before the separation. There had been no preceding argument or fall-out before that, and she had thought that everything was fine in the relationship. On 6 March 2008, she came home from work to find the locks changed and she was put out of the house.

[20.]        The pursuer is now living with a new partner who owns their present home. She is seeking a capital sum to enable her to start her life again and allow her to put down a deposit on a house. She wished to be able to have a house of her own in case a similar thing ever happened again.

[21.]        Mrs. Nicola Fletcher is a friend of the pursuer. She knew the parties when they began to cohabit. They moved in to the house at the same time. Mrs. Fletcher was from Eyemouth but had lived in Sunderland since about January 1999. She would visit to stay with her parents, and would see the parties on these visits. She would see the parties every 3 - 4 months or so. Her knowledge of the parties' financial arrangements was gleaned from what the pursuer told her.

[22.]        Mrs Fletcher's impression was that the parties were "a normal couple". The house was always clean and tidy when she visited. She did not know how much the pursuer earned. According to her, the pursuer gave the defender money each month towards bills and shopping when she got paid. She would see the pursuer withdraw money from the cashline machine, and she would tell her that it was to meet bills. She recalled hearing the defender ask the pursuer for money for phone bills, and the pursuer agreeing to that .

[23.]        The house was well furnished and decorated. The pursuer told her that she had decorated the bedrooms and fitted new carpets, and that she had bought a dining room suite and bedroom furniture.

[24.]        Mrs. Fletcher's evidence was that the pursuer had a role in setting up the defender's business. She would phone up the Council. She showed the defender how to work the computer. She was supportive of the defender. She knew these things because the pursuer had told her.

[25.]        Miss Eva Newman was another friend of the pursuer. The pursuer told her that she and the defender were going to buy a house together and "put it in his name" because the defender had a higher income and she was unemployed.

[26.]        Miss Newman recalled that she went round to help the pursuer clean the house after she got the keys. Miss Newman was next in the house a week or two later. By then, both parties were living there "full-time". After that, she would visit the parties approximately once a week. She noted that the house was always immaculate.

[27.]        Miss Newman was aware that the pursuer had a part-time job at Currys, and thought she contributed to the household from her earnings. She had a staff discount from Currys and bought things for the house. She recalled the pursuer asking her to stay in on one occasion to await the delivery of a new washing machine. The parties would do a "big shop" at Asda once a month, and as far as she was aware, they took turns at buying the food shopping.

[28.]        In cross examination, Miss Newman accepted that she did not know anything about the arrangements for the purchase of the house or the funding of it. She did not think that, once the parties obtained the keys of the house, the pursuer returned to live with her mother. The pursuer's belongings were in the cottage when she went round. However, she was largely going by what the pursuer had told her in this regard.

[29.]        The final witness for the pursuer was Claire Mabon; another friend of the pursuer. She knew the pursuer from having worked with her at Goldsmiths. According to her, the pursuer initially worked part time for 15 or 16 hours per week, and then became full-time in about 2005 or 2006. They were both made redundant from Goldsmiths at the same time, on 31 March 2006.

[30.]        Miss Mabon was aware that the pursuer cohabited with the defender. She had met him and knew that he had set up his own panel beating business. However she knew nothing about the defender's business or what the pursuer thought of it. She knew very little about the pursuer's spending habits, but did not remember the pursuer as someone whom she would see laden with personal shopping. After they finished at Goldsmiths, the pursuer and Miss Mabon saw each other about once a month.

Defender's Evidence

[31.]        After the parties' engagement in October 1998 they discussed marriage, but nothing firm had ever been agreed.

[32.]        The parties viewed a number of properties together before the house came on the market. The defender had it surveyed and put in an offer, which was successful. He had savings and an employment history, and was therefore in a position to qualify for a mortgage. He took out a mortgage with Newcastle Building Society and put a £2,000 deposit down from his own savings. The pursuer was unemployed.

[33.]        On Thursday 1 April 1999, the defender obtained the keys to the house. The parties did not however move in together at that time. The pursuer and her friend cleaned the house, and the defender moved furniture in. The pursuer stayed over, but went back to her mother's house on the following Monday because she feared it would affect her Benefit entitlement if she moved in with the pursuer. The pursuer did not move in with him until about the beginning of May, and she got a job with Currys a few weeks later.

[34.]        The defender brought to the house a bed, fridge-freezer, TV and TV stand from his mother's house. He bought a three-piece suite. The only furniture the pursuer bought were two bedside cabinets.

[35.]        The financial arrangement was that the defender would pay the mortgage, Council Tax and utility bills. The Sky TV bills were paid for by direct debit from his bank account. He neither asked for nor received any contribution from the pursuer. However, he did ask the pursuer from time to time to contribute to the phone bill if she had made expensive calls to mobile numbers or international calls. The pursuer would pay him in cash on these occasions.

[36.]        The pursuer would also give him cash to pay catalogue bills on her behalf because she did not have a cheque book. These were accounts in the pursuer's name with Next and Marshall Ward for the purchase of clothing.

[37.]        The parties would together to do a "big shop" at the start of the month. The pursuer would pay for this. The cost of casual food shopping during the rest of the month was shared by the parties. However the pursuer had no ability to manage her finances, and would often run out of money by the middle of the month.

[38.]        According to the defender, the parties shared the domestic duties between them. They shared the cooking 50-50. The pursuer did the washing hoovering and ironing. The defender carried out the garden and external work.

[39.]        He decided to set up in business on his own account after his uncle had died and left him £20,000.

[40.]        In May 2006 he bought land for new business premises and put up a kit building. He financed the project by re-mortgaging the house. He did not discuss the project with the pursuer as it was his business, and he was paying the mortgage over the house.

[41.]        The defender was adamant that the pursuer had no involvement in the day to day running of his business. He issued his own invoices. When he bought a computer for the business, he did not have the knowledge to use it. He did not get any help from the pursuer, other than her showing him the very basics, such as how to switch it on. Louise Buglass showed him how to use the computer, and set up templates for invoices and letterheads. Peter Anderson helped him set up the computer to do his accounts..

[42.]        The defender was referred to his business accounts, which were lodged as productions and featured in the joint minute. The movement in capital position and profits were as shown in the accounts. By the end of his relationship with the pursuer, he was earning slightly less than he had been when he had been working for the John Martin Group. His net profit for that year was £16,000, whereas he had earned £14,000 in his last 9 months with John Martin.

[43.]        The defender did not ask the pursuer to help him financially as she never had any money. She would spend her money on trips to Sunderland to visit friends and on clothes. She visited Sunderland once or twice a month, and would go into Edinburgh shopping on the first Friday of the month after she had been paid. They had gone on two or three holidays together as a couple in the earlier part of the relationship. Thereafter, the pursuer had gone on holiday herself. He recalled that she had gone to Ireland, Luxembourg and Frankfurt. She had been to Dublin 3 or 4 times. When he spoke to the pursuer once about her spending habits, her response was to say that if they were starting to talk about money, the relationship was in trouble.

[44.]        The relationship came to an end because the pursuer was spending a lot of time away in Sunderland, and would come home late at night on occasions. He believed she was seeing another man.

[45.]        The pursuer had acquired some of the furniture in the house; a chest of drawers, bedside cabinets, a table and chairs in the dining room, a nest of chairs int living room and a sideboard. He was, and remains, willing to return these items to the pursuer. This was raised in discussions between the parties' solicitors but the offer was never taken up.

[46.]        The defender did not accept that the pursuer shared the household bills. He denied that she gave him cash to correspond with her share of the direct debits from his account. He himself was "not bad" with money. A number of cash withdrawals of from the pursuer's bank account were put to him. These were for sums of the order of £100 or £110, but he denied the suggestion that those withdrawals represented cash the pursuer was giving to him to help him make ends meet before the end of the month. As a self-employed person, income was not regular; but he did not get any help from the pursuer. His drawings would depend on the income coming in, but he had his inheritance, or what was left of it, to help tide him over. The pursuer never had any money, so if he did need a loan from time to time he would go to his mother.

[47.]        He accepted that the pursuer was very efficient at housework and she did her fair proportion of the household duties. Often she would phone him at work to tell him that his tea was ready or to ask him to take something home from the chip shop

[48.]        The defender is now in another relationship which began after the parties ceased to cohabit. He does not live with the lady concerned.

[49.]        Mrs. Isabella Anderson gave evidence on behalf of the defender. She is a civil servant. She is married to a cousin of the defender. Before the defender bought the house, he told her that he had some proceeds of an insurance policy and was thinking of moving out from his mother's house. He did not mention the pursuer at this time.

[50.]        Mrs Anderson's evidence was that the pursuer did not move into the house initially, but did so later on. She and her husband saw the parties fairly often. She had no knowledge of any arrangement the parties had for payment of bills. She had known the defender for more than 30 years. She knew that he was careful with money and would ever get himself into a situation where he could not afford something.

[51.]         According to Mrs Anderson, the pursuer was house-proud and kept the house in good shape. The defender did the heavier tasks such as gardening.Both parties shared the cooking.

[52.]         Mrs Anderson did know of any role which the pursuer had in the defender's business. Her son, Peter Anderson, had been the one to help the defender set up the computer to do his accounts.

[53.]         Eventually the defender started coming to see her and her husband without the pursuer. He would sometimes explain that the pursuer had gone away for the weekend with friends. She could see that things were not right in the relationship.

Pursuer's Submissions

[54.]        Counsel indicated that she sought for decree for payment of a capital sum of £30,000 in terms of Crave 1. She sought no order in respect of crave 2.

Economic Advantage to the Defender

[55.]        The first consideration in terms of section 28, is whether the defender has derived any economic advantage from contributions made by pursuer during the cohabitation. The advantage can be increases in capital, income or earning capacity. She submitted that the defender has gained in capital in these respects:

[56.]        The House - When purchased, the equity in the property was £2,000. Notwithstanding Mr Chisholm borrowing further sums against the property, at the date the parties ceased to cohabit the equity in the property was £25,307.

[57.]        The pursuer made direct financial contributions to the payment of the mortgage over the nine years of the parties' cohabitation. Partly as a result of her contributions, the defender has increased his capital. The property has increased in value as a result of the rising market during the parties' cohabitation. However, had the parties not paid the various outgoings associated with the house, the defender would not have been in a position to enjoy the fruits of capital appreciation of this asset.

[58.]        The Defender's Business - The pursuer now has a business which was set up during the cohabitation. The value at the date of cessation of cohabitation was £45,366; being the total of his capital account. He financed this by means of inherited funds and remortgaging of the house in which the parties cohabited.

[59.]        The total gain in capital is accordingly £68,673 (being the sum of the increase in the house equity and the total of the capital account). Included in that gain is the amount of inherited funds received by Mr Chisholm during the cohabitation (£20,693). Counsel acknowledged that the latter amount had not been derived from the cohabitation and should in fairness be deducted form the overall capital gain, leaving a net capital gain of £47,980.

[60.]        Increase in Defender's Earning Capacity - Counsel accepted that the defender does not appear to have gained in actual income. His last period of employment was with the John Martin Group when he was earning around £19,000 per annum. His income for the 9 months to December 2004 was £14,336. In the financial year of the parties' cessation of cohabitation, he drew £12,084 from a net profit of £16,759.

[61.]        He was on a fixed salary at the John Martin Group. His own business is on an upward trend in terms of net profit. He could not give figures in his evidence but confirmed that net profit was increasing. He now has an employee, and net profit is still increasing. His earning capacity has therefore increased over the period of the cohabitation. His net profit in the financial year ending 2008 was £16,759. The net profit has increased in the two financial years since, accordingly to his evidence. His own evidence was that he was better off now.

The Pursuer's contributions

[62.]        "Contributions" are defined in section 28 (9) of the Act. They include any indirect and non-financial contributions. In this case, the pursuer made direct financial contributions, indirect contributions and non-financial contributions.

[63.]        Direct financial contributions: The pursuer's evidence was that she contributed throughout the relationship, although not so much when they initially lived together for the first couple of months and she was not working. She quickly obtained employment with Currys in the summer of 1999. She then earned around £180 per week of which £100 was contributed towards the household.

[64.]        She worked with Currys until 2000 when she obtained employment with Goldsmiths initially for 30 hours each week and then for 37 hours each week. Her salary was between £400 and £600 per month throughout the time she was employed with Goldsmiths and her evidence was she continued to contribute about £100 per week to the household.

[65.]        From 2006 she was employed at Torness by Eurest and was earning around £900 per month. In this period, she was able to increase her contribution to food and the telephone bill. She was also able to purchase luxuries for the household.

[66.]        Non-financial contributions to the household: The parties had an "old fashioned relationship" whereby the pursuer looked after everything in the home and the defender did the garden. She was not grudging of that arrangement. Her evidence was that the parties shared everything.

[67.]        Non-financial contributions to the defender's business: Counsel submitted that the pursuer was a source of support for the defender. He discussed setting up his own business with her. She acknowledged he was saving for a business. She typed letters and invoices, and showed him how to work the computer. She would take telephone calls and pass on messages.

[68.]        Counsel submitted that where the parties' accounts conflicted, I should prefer the evidence of the pursuer. The defender's suggestion that he purchased the house intending that the pursuer would move in eventually, did not make sense. He minimised every detail relating to the pursuer's contributions. He had produced only minimal and unsatisfactory financial information. He was in overdraft before the deposit of his inheritance. It was questionable whether his drawings were sufficient to pay for all the household outgoings without another source of money. He was evasive when cross-examined about this. The evidence of repeated cash withdrawals from the pursuer's bank account was supportive of her position that she was contributing to the household regularly in cash. She only had a cashline card. She did not have a cheque book. She frankly accepted that she was stupid not to set up a standing order. The defender suggested that the pursuer spent the money on herself, but it was not possible to give this any weight as these allegations were not put properly to the pursuer. For example, his evidence about the pursuer's monthly trips to Edinburgh was not put to her.

Economic Disadvantage to the Pursuer

[69.]        Counsel submitted that the pursuer had suffered economic disadvantage in the interests of defender in relation to both her capital and income positions.

[70.]        Throughout the period of cohabitation, the pursuer considered that she was contributing to the parties' house and business. She repeatedly said she thought there was "no danger" in leaving things on an informal basis because they were engaged to be married. Although she was locked out of the computer six months before they ceased to cohabit, she had no reason to be particularly suspicious or concerned until relatively shortly before the end of their relationship. She acknowledged it was stupid of her not to record the contributions she was making, but she thought there was no need because they were together as an engaged couple.

[71.]        This was not a situation where the defender already owned and lived in the shared home before the cohabitee moved in. Both parties were living with their respective parents when they met. They became engaged and looked at houses together for use as a family home. They bought the house, and furnished and equipped it together with contents from both of their family homes, and with purchases made by both parties.

[72.]        Neither was this a situation where the defender had an existing business and the pursuer came along and contributed her time to that. The defender's business was set up during the cohabitation, with the pursuer's support and encouragement.

[73.]        Had the pursuer been contributing to a home in the parties' joint names, she would have shared in the increase in value of the property. She has suffered economic disadvantage as a result of the property being in the sole name of the defender.

Whether economic advantage derived by defender is offset to any extent - [s28(5)]

[74.]        The advantages to the defender of the pursuer's contributions do not appear to be offset to any extent. As the parties maintained separate financial arrangements, he was not required to support the pursuer. He paid the Next bills, but he was given the money for them. The submission was therefore that, except for the couple of months at the very start of the cohabitation, the defender did not support the pursuer. There has been no economic disadvantage to the defender in that regard. Neither can it be said that the defender had suffered any loss in capital, income or earning capacity as a result of the cohabitation.

Whether economic disadvantage to the pursuer offset by economic advantage from the defender's contributions - [s 28(6)]

[75.]        Section 28(6) requires the court to consider whether any disadvantage to the pursuer is offset by any economic advantage she has gained from the defender's contributions. In this regard, it could be said that her enjoyment of the property during the period she resided with defender was a consideration. However, no economic advantage arises from living in a property to which the pursuer herself was contributing. She cannot be said to have enjoyed any economic advantage as a result of the cohabitation. Accordingly, no offset is required.

Application of 2006 Act

[76.]        Counsel accepted that the principles of fair or equal division of assets applicable to married couples did not apply in relation to cohabiting couples under the 2006 Act. However, the court should take a broad brush approach in considering a claim for a capital sum under s 28(2)(a), and look at the whole circumstances of the economic advantage gained by the defender and the economic disadvantage suffered by the pursuer, subject to the offsetting provisions of subsections (5) and (6), if applicable.

Pursuer's authorities

[77.]        I was referred to the following decided cases:

Jamieson v Rodhouse, Kirkcaldy Sheriff Court 1.08.08 (Sheriff Hogg)

CM v STS [2008] CSOH 125, (Lord Matthews, Outer House)

F v D 2009 Fam LR 111 (Kirkcaldy Sheriff Court, Sheriff Hendry)

Gow v Grant, Edinburgh Sheriff Court 7.12.09 (Sheriff K. Mackie)

[78.]        Counsel submitted that although no award had been made by the court in Jamieson v Rodhouse, and only a small award had been made under s 28(2)(a) in CM v STS, these cases could be distinguished. In these cases the court did not have sufficient evidence to allow proper quantification to be made, whereas in the present case more detailed information was available. An award was made in the case of F v D. Even though the evidence did not permit a forensic mathematical calculation, the court adopted a "broad brush" approach. That case was similar in many respects to the present one, except that there was a child of the relationship. Gow v Grant was a case where the Sheriff made an award under s 28(3)(b) where the pursuer suffered economic disadvantage in the interests of the defender in that she sold her own house and lost the capital appreciation in that. She had also purchased a time share in the parties' joint names. Although the Sheriff accepted that the defender obtained economic advantage from the pursuer's financial and non financial contributions, she made no award under s 28(3)(a).

[79.]        In considering sections 28(3)(a) and (b), the court is entitled to have regard to the common purpose of cohabitants. Where property has been bought with purpose of cohabitation, as in the present case, it can be treated differently from the situation where one party simply moves into another's property

[80.]        In relation to the business, this was not a pre-existing business, but was commenced during the cohabitation. It would therefore be reasonable to have regard to the method of funding the business, which included re-mortgaging the house they shared as their home. The Court should also have regard to the capital, income and earning capacity generated during the cohabitation when considering economic advantage and disadvantage.

[81.]        In concluding her submissions, counsel accepted that examination of the cases does not disclose any general principles underlying the interpretation of these provisions. Although economic advantage and disadvantage require to be quantified by reference to values of capital, levels of income and evidence of earning capacity, the court should take a broad approach. Fair account should be taken of the value of indirect and non-financial contributions.

[82.]        The total gain in capital to the defender, without the inclusion of the inherited funds, is £47,980. Having regard to both parties contributions over a lengthy period, an equitable solution in relation to capital would be for the pursuer to receive one half of the total gain in capital = £23,990. Allowance should also be made for the economic advantage to the defender arising from his increase in earning capacity. As a result of the defender setting up his business, his earning capacity has increased. An award of £6,000 under this head would be justified on a broad brush approach as fairly representing a proportion of that increase due to the contributions of the pursuer. An equitable award would therefore be £30,000. Counsel for the pursuer accordingly moved me to grant decree for payment of a capital sum in the amount of £30,000. She did not seek decree in terms of crave 2, which relates to the furniture and fittings.

[83.]        Esto the court did not accept the evidence of the pursuer's contributions to the defender's business, the equity in the house at the date of cessation of cohabitation and the increase in the defender's earning capacity were nevertheless available in quantifying economic advantage and disadvantage. The equity in the house, which would have been more had the defender not re-mortgaged it to finance his business, was £25,307. In those circumstances, an award of a capital sum of £15,000 could be justified; representing half of the equity (£12,653) and a balancing figure of £2,347 in respect of the increase in the defender's earning capacity.

Defender's Submissions

Scheme of the legislation

[84.]        The pursuer's submissions confused the position of separating cohabitants with that of married couples on divorce. The 1985 Act introduced concepts of matrimonial property, fair sharing and equal sharing which are not to be found in the 2006 Act. Counsel outlined her understanding of section 28. The conditions for making an award under 28(2) are set out in s 28(3) and following subsections. Section 28(9) deals with the construction of "economic advantage or disadvantage". The relevant questions are: (1) Has the defender gained in capital, income or earning capacity as a result of the pursuer's contributions? (2) Has the pursuer lost capital, income or earning capacity in the interests of the defender? In Coyle v Coyle 2004 FamLR 2, at para 37 Lady Smith commented, in relation to a divorce case, that an identifiable economic advantage deriving from an identifiable contribution by the other party would have to be established before the principles relied on could be taken into account. There was no reason why that observation should not apply to the 2006 legislation, and that was the approach which the court should adopt in this case.

The Pursuer's claim for financial provision in terms of section 28(2)(a)

2 Gunsgreen Hill Cottages

[85.]        The intention in purchasing the property is irrelevant. There is a danger that the position is confused with that of marriage, where a property bought before marriage as a family home forms part of the matrimonial property. Neither is it sufficient for the pursuer to say that if title had been taken in joint names, the pursuer would have shared in the equity. All of the cases have emphasised that the provisions of section 28 do not start from a presumption of equal sharing of property acquired during the course of cohabitation. It may be said that the opposite is true; the starting point is that there is no financial provision unless the pursuer can establish meet the criteria of section 28.

[86.]        It is agreed that he increase in value of the house is solely attributable to market forces. The only equity put into the property at the outset was the deposit of £2,000 paid by the defender. Accordingly, none of the capital appreciation in the property is attributable to the pursuer's contributions.

[87.]        The total reduction in capital borrowing is £9,964. It represents the reduction in the mortgage balance between the date of purchase and the date of the re-mortgage, added to the reduction between the date of the re-mortgage and the date of cessation of cohabitation. Even if the pursuer has persuaded the court that she had been contributing one half of the mortgage payments throughout the entire course of the cohabitation, the only advantage to the defender is her share of the total reduction. She could thus only claim that one half of that reduction was the result of her contributions. That equates to £4,982 based on the figures set out in the Joint Minute. However, the defender's primary position was that the pursuer had not in fact been contributing to the mortgage, and no award should be made.

Contributions towards living expenses

[88.]        The parties did not pool their resources by setting up a joint account into which they each contributed. The defender made payment of all of the household bills including the mortgage. The pursuer made a contribution to food. She gave the defender money to meet payments to her Next account. She paid for her own international or mobile calls.

[89.]        The Pursuer's suggestion that she contributed sums towards the household bills of the mortgage, sky television, utility bills, land line rental and council tax is not credible. At the beginning of the relationship, she was not working at all. Thereafter her earnings were lower than those of the defender. The pursuer's evidence about her hours at Goldsmiths contrasted with that of her witness. Claire Mabon was quite clear that the pursuer did not begin working full-time until 2005, having initially only worked part time for 15-16 hours per week.

[90.]        The pursuer's bank account statements only disclose withdrawals of cash; not what that cash was used for. Nicola Fletcher could not say that these sums were actually given to the defender and for what purpose. She wasn't living in the area and did not have any information about the parties' financial dealings than the pursuer had told her.

Robert Chisholm Vehicle Body Repairs

[91.]        The pursuer's position is that she assisted the defender with administrative support for his business. However, there was no evidence about the amount of time she is supposed to have spent on these tasks. She did not appear to be involved in the business to any significant extent. Once he had learned to use the computer, the defender was able to input data himself for the invoices. Isabella Anderson spoke of the assistance her son offered, and referred to the disc which the defender had obtained from an accountant. She also mentioned him using a duplicate book initially, which was consistent with his own evidence. I should prefer the defender's evidence that the pursuer did not do typing for the defender. She showed the defender initially how to work the computer, and occasionally answered the phone or passed on messages.

[92.]        However, even if the Pursuer was involved as much as she claimed, the defender did not gain an "economic advantage" as defined by the Act. No gains in capital, income and earning capacity have been identified. Even if the court accepted that the pursuer was supportive of the defender, in an abstract way, in setting up his business , that would not amount to a contribution.

[93.]        In terms of Capital, the value of the business is agreed and represented by the accounts. The capital injection into the business was principally funded by a re-mortgage over the house and by funds inherited by the defender. Although capital appreciation in the house allowed funds to be released for business purposes, this was entirely due to market forces and not attributable to any contribution by the pursuer. There is simply no evidence that any increase in capital of the business was due in any way to the contributions of the pursuer.

[94.]        As far as income and earning capacity is concerned, the defender was working with the John Martin Group for much of the cohabitation. He left that in 2004 and set up his business. His earnings for the 9 months to 22 December 2004 were £14,336. That equates to £1,593 per month gross. In the financial year 2007/2008, the net profit was £16,759. That equates to about £1,396 per month gross. Accordingly, his income by the end of the relationship had not increased. Therefore it cannot be said that he has made gains in income or earning capacity. Even if it had increased, it cannot be said that the pursuer contributed to that.

[95.]        There is no evidence that, even if the pursuer made the contributions she claims, she suffered an economic disadvantage as a result. It appears that her own earnings increased over the course of the cohabitation (paras 13 and 15 of the Joint Minute of Admissions).

Non-financial contributions

[96.]        The pursuer herself acknowledged that the defender worked in the garden, whilst she kept the house. There was a dispute about the extent to which the parties were involved in cooking. Overall, both parties contributed to the day to day chores. There is no consequent advantage to the defender as a result of the pursuer's contributions. Neither is there any corresponding disadvantage to the pursuer. The defender has not gained in capital, income or earning capacity, and the pursuer has not lost as a result of her contributions.

[97.]        In closing her submissions, counsel for the defender invited me to assoilzie the defender. She also invited me to reserve the question of expenses for a separarte hearing after my decision on the merits.

Discussion

The scope of the 2006 Act

[98.]        An award to a cohabitant under s 28(2)(a)of the 2006 Act is quite distinct from financial provision awarded to a spouse under the Family Law (Scotland) Act 1985 on divorce. There is no concept akin to matrimonial property, equal sharing or fair sharing. Entitlement to an award does not arise by virtue of the fact of cohabitation itself. It does not appear that Parliament intended cohabitants to be placed in the same position upon separation as spouses upon divorce. The considerations in s 28(3) are whether the defender has derived an economic advantage from the pursuer's contributions, and whether she has suffered an economic disadvantage in his interests. In making such an award, the court must have regard to sections 28(5) and (6), and consider whether any advantage been offset by a disadvantage, or vice versa.

[99.]        I would respectfully adopt the clear analysis of the relevant provisions by Sheriff Mackie in Gow v Grant. The court has a discretion whether to make on order, after having regard to the matters set out in sections 28(3)(a) and (b). It may well be appropriate to adopt a "broad brush" approach, in quantifying any identified advantage and corresponding contributions.

[100.]    The decided cases are instructive as examples of the application of the section 28 considerations, and for the insightful observations of the judges concerned. However the cases do not as yet reveal any authoritative underlying principles of general application in interpreting the provisions.

[101.]    In Jamieson v Rodhouse, there had been a 30 year cohabitation period, and the pursuer's son had been accepted as a child of the relationship. The Sheriff ruled out an equal sharing of the net equity in the house in which the parties were living at the date of cessation of cohabitation on the basis that that was not what was contemplated by the legislation. He found that the economic position was neutral; one party looked after the house and paid for the majority of the food and the other provided the house and met the associated bills. No award was made, despite the length of cohabitation and the increase in value in the family home.

[102.]    In CM v STS, there had been an 8 year cohabitation and 2 children. The focus of the pursuer's claim was the economic disadvantage which she alleged arose as a result of restricting her working hours because of child care. The sum awarded under section 28(2)(a) was very modest, and it was the section 28(2)(b) claim in respect of child care which attracted a larger award.

[103.]    In F v D, there had been cohabitation for 5 years. The Sheriff contrasted the scheme of financial provision for spouses with that for cohabitants. He noted that, in respect of spouses, there was a rebuttable presumption that the net value of the matrimonial property would be shared fairly if it is shared equally. However, the rebuttable presumption at the end of cohabitation is that each party will retain his or her own property. It was therefore for the pursuer to prove that she should be entitled to an award based on the s 28 principles. The defender was able to borrow money from the pursuer's father. This assisted him in the purchase of property which was later sold at a profit. He was also able to extend the borrowing over the property. By contrast, in the present case the deposit for the purchase of the property came from the defender's own savings, and the mortgage was obtained on the basis of his earnings at a time when the pursuer was unemployed. The later additional investment in his business came from funds inherited by him. It cannot therefore be said in the present case that there is any connection between the pursuer's contributions, on the one hand, and the defender's purchase of the property and subsequent re-mortgage on the other hand.

[104.]    In Gow v Grant, there was a 5 year cohabitation. At the commencement of the relationship, the pursuer had a flat and an endowment policy. She sold that property and invested the funds. When her contract came to an end, she did not seek further work, at the defender's request, and she did not work for a period. The defender paid most of the bills and did the cooking. In this case, there was detailed quantification. The Sheriff found that the pursuer had suffered an economic disadvantage in the interests of the defender because she had given up her investment in heritable property and contributed to the purchase of a timeshare in joint names.

[105.]    In my opinion, it is significant that in none of these cases was any award made solely on the basis of contributions towards household bills. The only award made over £6,000 was in Gow v Grant, and this was to reflect the loss of a heritable property. Responsibility for child care was also a significant feature of the cases where significant awards had been made. This is not a factor in the present case.

[106.]    I was invited by the pursuer to have regard to the parties' common intention that the house was bought for the purpose of being a family home occupied by the parties together. However, I agree with the defender's submission that this confuses the s.28 considerations with the considerations which would apply to financial provision on divorce under the 1985 Act.

Credibility and Reliability

[107.]    I found the pursuer and defender tended to maximise their own individual contributions to the relationship and minimise those of the other party. Many of the financial details were not in dispute and were agreed in a joint minute. However, there were conflicts in the evidence in relation to the level of the defender's financial and non-financial contributions. Subject to the following comments, I was generally inclined to prefer the evidence of the defender on these matters.

[108.]    It was suggested to the pursuer that the relationship had come to an end because she had formed a relationship with another man. It was also suggested to the defender in cross examination that he had been seeing another women before the end of the relationship. There was no evidence that either party had acted in this way.

[109.]    The defender tried to characterise the pursuer as a spendthrift who could not manage her finances, and would spend her money on shopping and holidays for herself. I do not think that is a fair assessment of the pursuer. She had a modest income from her job. She occasionally went on holiday on her own; principally to meet up with her brother who worked in Munich. She enjoyed trips to the shops. but not to any extent which seemed unduly extravagant. My impression of the pursuer was that she was perhaps naive in financial matters rather than irresponsible.

[110.]    My impression of the defender was of someone hard working and careful with money. His main interest was his business, and he had little interest in socialising. His assessment of the defender's financial behaviour is no doubt coloured by his own parsimonious attitudes.

[111.]    I found all the other witnesses generally credible, but the pursuer's witnesses were limited in their personal knowledge of the parties' financial arrangements. They only saw the pursuer at various intervals ranging from weekly to quarterly. Much of what they could say was based only on what the pursuer had told them, and I was not able to place much weight on it for that reason. For example, Mrs. Fletcher saw the pursuer withdraw cash from the cashline machine "to meet bills", but she could not say what the money was for, whether it was in fact handed over to the defender, what sort of amounts were involved and how often this occurred.

Section 28(3)(a)

[112.]    The pursuer maintains that the defender has obtained economic advantage from her contributions in relation to the house and his business.

[113.]    The house is in the sole name of the defender, It is agreed that it has increased in value - as has the equity in it. The figures are derived from paragraphs 4, 8, 9, 10 and 11 of the joint minute. It was purchased for £43,999 in April 1999. At that time the equity in it was £2,000. At the date of cessation of cohabitation, the agreed valuation was £97,500, with equity of £25,942. There has thus been an increase in the capital value of the house which is a significant economic gain to the defender. In relation to the business, this was set up during the period of cohabitation. The balance of the defender's capital account at the date cohabitation ceased was £45,366. That increase in capital represents the fruits of the defender's labour, together with investment which he was able to make from the funds he inherited and the proceeds of the re-mortgage of the house with Northern Rock. The growth of the business therefore represents a further significant economic gain to the defender.

[114.]    It is apparent from the accounts that the defender's actual earnings have not increased by virtue of the setting up of his business. However, the pursuer argues that the defender has obtained further economic advantage from an increase in his earning capacity, and that this should be reflected in any award under section 28(2). I was not addressed as to how I should go about quantifying the increase in earning capacity, but I accept that the accounts show an upward trend in net profits and the defender's own view was that he is better off now. On that basis, I am prepared to hold that he has enjoyed an increase in his earning capacity, albeit that this could only be measured on a "broad brush" basis.

[115.]    However, these instances of economic gain to the defender are only one side of the equation. Before any award can be made under s 28(3)(a), a link must be established between the economic advantage identified and the contributions of the pursuer. In particular, it must be shown that the economic advantage to the defender has "derived from" the contributions of the pursuer. This involves considering what contributions the pursuer made, and whether they have to any extent led to gains in the defender's capital, income or earning capacity.

[116.]    I am unable to accept the pursuer's evidence about the level of her contribution to domestic finances. Even on her own evidence, she did not contribute any fixed proportion of the bills. Nor was it at all clear from her evidence what sums she claimed that she was giving to the defender. Other cash sums appear to have been to put the defender in funds to pay her Next shopping account and international telephone calls made by her. There is nothing to vouch that the pursuer was contributing towards the mortgage, Sky TV, utility bills, land line rental and council tax. I accepted the evidence of the defender that her contribution was limited to paying for the monthly food shopping, and that he neither asked for, nor received, any contribution to these household bills. If the pursuer was such a significant contributor to the mortgage and household bills, it would seem odd if the defender asked her to make a further specific contribution towards the cost of expensive telephone calls made by her. I am not persuaded on the evidence that any inference can be drawn that the defender would have been unable to meet household bills without the help of the pursuer. His income was irregular, and he was able to save so as to average out his earnings. I accepted his evidence that, when he did need assistance, it was to his mother that he would turn for a loan; and not the pursuer.

[117.]    Even if the pursuer had been contributing to the household bills, these items of expenditure are incidents of the parties' day to day living arrangements. I do not consider that the pursuer paying, or paying a share of, these services consumed by her would result in any gain to the defender. No economic advantage could be said to accrue to the defender within the meaning of the Act, as he could not be said to have gained in capital, income or earning capacity as a result of such contributions. He would still have had bills to pay if the pursuer was not living with him, but he would only had himself to support. None of the decided cases show awards being made solely on the basis of such contributions

[118.]    The only equity put into the house at the outset was the deposit of £2,000 paid by the defender. The increase in capital value of the house was due solely to market forces. The defender is correct to observe that, in these circumstances, none of the capital appreciation in the house can be attributed to any contribution from the pursuer. I also agree with counsel for the defender that, if it had been established that the pursuer had been paying a half share of the mortgage throughout, the appropriate measure of the economic advantage to the defender would be her one half share of the reduction in borrowing, namely £4,982.

[119.]    Provision of furniture, equipment, carpeting and decoration were expenses contributed to by both parties. Having regard to the evidence, it seems reasonable to conclude on a "broad brush" approach that these contributions balanced each other out.

[120.]    In relation to non-financial contributions to the household, the evidence established that domestic housekeeping tasks were shared between the parties. I am prepared to accept that the pursuer's share would have been greater, given the long hours worked by the defender. However, I do not see that this contribution can be said to have led to any gain in the defender's capital, income or earning capacity.

[121.]    Turning to the pursuer's non-financial contribution to the defender's business, I felt that the pursuer exaggerated her involvement. I accept that she occasionally answered the phone and took messages for him, and that she helped him get started with the basics of the computer when he first bought it. Beyond that, I preferred the evidence of the defender and Mrs Anderson that the pursuer was not actively involved as she claimed. The defender had help from others in relation to the computer. I regard it as significant that, when asked about typing, the pursuer was only able to think of one letter. This was a letter to the Council, which the defender recalled that he had handwritten himself. There was no evidence about the time she claimed to have given to the defender's business.

Section 28(3)(b)

[122.]    The pursuer also maintains that she has suffered economic disadvantage in the interests of the defender, in that she was engaged and believed that they would marry and be together forever. She assumed that she was contributing to a house and business which would be for the benefit of them both as a couple. She alleges that she has suffered economic disadvantage in that title to the house is in the sole name of the defender.

[123.]    Even if the pursuer had met a proportion of the household bills, these are costs which she would have incurred in any event in supporting herself, such as paying rent, utilities and council tax. There can be no economic disadvantage to the pursuer in her having to meet these payments which she would have had to meet in any event even if she had not been cohabiting with the pursuer.

[124.]    In my view, it is not relevant to take into account that the pursuer may have thought her patrimonial interests were protected simply by being engaged to the defender. This seems to me to rest on the view that by virtue of being engaged, a cohabiting claimant should be permitted to escape the confines of section 28 and anticipate rights to financial provision akin to those of spouses under the 1985 Act. That cannot be what Parliament intended.

Section 28(5) and (6)

[125.]    Had there been a prima facie basis for making an award under s 28 (3) (a) or (b), the defender's significant contributions would have to have been recognised by way of offset. However, in view of my principal conclusions, it follows that no offsetting exercise under section 28(5) or (6) falls to be carried out.

Decision

[126.]    For these reasons, the pursuer has not established on a balance of probabilities that any improvement in the defender's capital position with regard to the house and business or his earning capacity is an economic advantage derived to any extent from the pursuer's contributions. Nor has she established that she has suffered economic disadvantage in the interests of the defender. The defender is entitled to be assoilzied.

[127.]    Both parties are legally aided. I was asked by both parties to reserve the question of expenses until after my decision on the merits. The case will accordingly be put for a Hearing on Expenses in due course.