Scottish Sheriff Court Decisions

SHERIFFDOM OF GRAMPIAN, HIGHLAND AND ISLANDS AT ABERDEEN

 

JUDGMENT

of

MUNGO BOVEY QC

 

in the cause

 

M

pursuer

Against

 

T

defender

 

COURT REF NO F738/10

Act: McLachlan, Simpson & Marwick, Solicitors, Aberdeen

Alt: party

 

Aberdeen, 17 November 2011

 

The Sheriff, having resumed consideration of the cause:- finds that the parties ceased to cohabit on 29 April 2010; appoints the cause to a procedural hearing on 8 December 2011 at 9.30 am;

reserves meantime the expenses of the proof before him.

 

 

FINDINGS IN FACT

 

No	Finding
1	The pursuer is a 66 year old graphics and communication assistant working four days a week. The defender is a carer aged 52.
2	The parties met in 1990 and began a relationship in 1991 following the breakdown of the defender's marriage. The parties cohabited as if they were husband and wife from about September 1997. The pursuer moved into the defender's then local authority accommodation in Aberdeen and the parties cohabited there until they separated.
3	On 11 October 2008 the parties attended the eighth birthday party of the defender's granddaughter D. The pursuer's daughter KT, her husband Tom and their daughter also attended.
4	In January 2009 the parties went to visit the KTs in Hertfordshire. The shared a room with one bed in the KT's house.
5	In April 2009 the KTs stayed with the parties when the KTs visited for the 40th birthday party of the pursuer's son Mark. On this occasion, the KTs occupied the main bedroom and the parties were in the second bedroom. The parties shared the work of cooking and entertaining. The parties attended the party together and gave Mark money and a card with both their names on it.
6	The defender's daughter K was married on 1 August 2009. The pursuer gave her away and his granddaughter was a flower girl. His son and daughter and their respective spouses also attended. He made a speech and danced with the defender. The KTs stayed with the parties and the sleeping and other arrangements were as before.
7	Up until the end of October 2009 the parties shared a king size bed in the main bedroom of the house. They had an active sex life.
8	At the end of October, the pursuer made seriously unwelcome sexual advances to the defender. She removed herself from the main bedroom to the second bedroom of the house where she used a double bed. The parties did not thereafter engage in sexual intimacy.
9	While occupying the second bedroom, the defender would dress in the main bedroom while the pursuer was present. She and the defender would prepare and eat meals together. They entertained the defender's grandchildren together.
10	Up until at least Christmas 2009 the parties shared household tasks such as shopping, laundry, cooking and dish-washing. They undertook shopping trips together. They shared household expenses such as gas, electricity, council tax, groceries.
11	At Christmas 2009 the parties entertained family members on Christmas day. The defender gave the pursuer a bottle of aftershave. The pursuer gave the defender a pair of boots. She wanted to change them and a day or two after Christmas the parties went into Aberdeen shops to do this. They spent a pleasant day together.
12	In February and March 2010 the defender looked for flats for the pursuer to move into.
13	In April 2010 the KTs again visited and sleeping and other arrangements were as before. However, the defender told Mrs KT that she was not sure she was happy with the pursuer.
14	Between 2006 and April 2010 both the pursuer and his son Mark worked on the renovation of the defender's residential property in Aberdeen. Mark is a professional plumber. He undertook this work unpaid because he was the son of the pursuer.
15	Although the defender was unhappy in the relationship and wanted it to end, the pursuer did not. In April 2010 the pursuer realised the relationship was over.
16	By this time, the defender had not told anyone of an intention to separate from the pursuer.
17	In June 2010 the pursuer's sister was 80. A party was held. The parties were invited in May. The defender's initial reaction was to ask why she should attend when they were splitting up. The pursuer responded that his family would like to see her. She attended with him.
18	In about July 2010 the defender locked the pursuer out of the home they had shared up until then.
19	The pursuer in fact left in the early part of August 2010.
20	The KTs first learned that the parties were separating in the Summer of 2010, after the family party in June. Mark only thought the relationship was over when his father was locked out in July 2010. In general, the parties presented as a couple to their respective families until the defender forced the pursuer to leave in the Summer of 2010.
21	At all relevant times, the pursuer's credit card debts were a continuing source of friction between the parties.
22	The parties ceased to live as husband and wife on about 29 April 2010.

 

 

 

NOTE 

(1)   The pursuer seeks a capital sum under section 28 of the Family Law (Scotland) Act 2006. By interlocutor dated 11 March 2011 Sheriff Cusine appointed a preliminary proof to be heard on the date of separation. In accordance with that interlocutor, I heard evidence on 13 June and 15 August 2011 and submissions on the latter date.

(2)   In statement 7 of the Record as Amended dated 9 March 2011, the pursuer says that the parties separated on or about 29 April 2010 and that he "vacated the former family home in August 2010". The defender admits the latter averment but says that the parties separated in November 2008.

(3)   In addition to the parties' own evidence, I heard from the pursuer's daughter KT and her husband Tom KT and the pursuer's son Mark. The defender led C, a friend from work and the defender's daughter K. Neither party lodged any production.

 

The evidence

(4)   Outlining her position on 13 June 2011, the defender maintained that the parties had separated on 11 October 2008 at the eighth birthday party of her granddaughter D. She told her daughter K and the pursuer's daughter KT and KT's husband Tom. Money problems were the cause. In evidence on 15 August, she said that on that occasion both the pursuer and Tom KT had "stormed out".

(5)   The pursuer denied any such major row as did Mr and Mrs KT although Mr KT said that a suggestion of an argument over a car "rings a bell". However, he denied that the defender had told his wife that she "had had enough".

(6)   However, in her closing submission, the defender denied having said that she moved out in October [2008]but that it was just after K's wedding (1 August 2009). In cross-examination, she said she had moved out of the main bedroom at the start of September 2009 after K's wedding.

(7)   The pursuer's account of how the defender came to remove to a separate bedroom was that he was "messing around" by which he meant "trying to be intimate", she "took exception and took it as an excuse" to move out. The defender maintained that the pursuer had "helped himself" sexually by which she meant that she had forced himself on her. Significantly, this is what she told her friend at work, Mrs C, at about this time. I am therefore prepared to find that the pursuer made seriously unwelcome sexual advances to her on this occasion which prompted her removal.

(8)   On 15 August 2011 the defender gave evidence that this event happened just after the wedding of her daughter K (on 1 August 2009) and that was the last time she slept in the same bed as the pursuer.

(9)   Despite this, the defender's closing submission to me was that the relationship broke down because of the pursuer's debts.

(10)                      The dispute between the parties was thus substantially narrowed from that disclosed on record. Indeed, the defender's account of life up to the shopping trip after Christmas 2009 was not very different from the pursuer. Asked why she had maintained a facade as she claimed she said:

"I just tried to save disruption. [We] couldn't have Christmas away from home; the grandchildren always come at Christmas time."

(11)                      The defender did maintain that there were subtle indicators of trouble: her present to the pursuer was [only] a £17 bottle of aftershave. As to how she came to give even this after he had forced himself on her, she said:

"I know it sounds stupid. Yes. You don't know how it is to live with M."

(12)                      The defender's explanation for attending the pursuer's family occasions was that it was his daughter and granddaughter's events. She also appeared to accept that while the parties were occupying separate bedrooms she had continued to cook at least on those occasions when grandchildren were visiting as she didn't want them to overhear their rowing.

(13)                      The pursuer gave evidence that up to 2 August 2010 the parties shared household tasks such as shopping, laundry, cooking and dish-washing. He said that the defender enjoyed him going with her on shopping trips to view what she was buying. The last such trip was, he thought, in June 2010 when the atmosphere had been the same as it always was.

(14)                      He also maintained that up to that date both shared household expenses such as gas, electricity, council tax, groceries. Although a non-smoker, he bought cigarettes for the defender. This general picture was confirmed in relation to the KT family visits by his daughter KT.

(15)                      The pursuer's evidence was that the defender asked him to leave on 16 April 2010, the day after he and Mark had finished the renovation of her flat. This is a different date in April from that on record for him.

(16)                      Mrs KT said that in April 2010 the defender told her that she was not sure she was happy with the pursuer. As they were still together when the KTs visited in June 2010, she assumed that things were "back on track".

(17)                      In cross-examination of the pursuer on 13 June 2011, the defender said that she asked the pursuer to leave in January 2009 because the relationship had "totally ended".She referred to the worry of not knowing if she would lose her house, the strain of all the pursuer's debt and trying to cover up everything. His response was that in January 2009, the parties had gone together to visit his daughter KT in England where they had been delayed by snow. KT didn't recall seeing the defender sleeping on the settee when visiting with the pursuer as she claimed.

 

The witnesses

(18)                      In general I accepted the evidence of the pursuer who gave it in a straight-forward manner and was largely corroborated by members of his family who also seemed responsible and reasonable people. The defender was handicapped by representing herself and by a number of changes of dates of separation during the proceedings. I didn't find that I could in general rely on her evidence where unsupported by others. Mrs C's evidence consisted essentially of relating what she said the defender had said to her over the years when they had worked together. Her impression that the relationship was finished in 2008 reflects at most the complaints the defender put to her rather than the parties' actual conduct.

(19)                      K, the defender's daughter initially said that the sleeping arrangements had changed shortly after she returned from a four day holiday following on her wedding on 1 August 2009, She said that the defender had told her that the pursuer had "helped himself for sex" and that she had told her to phone the police. After that, she regarded them as not being partners although they were staying in the same house. However, she later said her mother complained just before the wedding and that the parties were not sleeping in the same bedroom at the date of the wedding. I find this change of front makes it difficult to place reliance on this witness. I reject her evidence that in the knowledge of the pursuer having forced himself on her mother, she allowed him to give her away at her wedding.

(20)                      The defender's claim that she attended family events for the sake of the family members rather than because she was a couple with the pursuer is problematic; she did attend the pursuer's sister's birthday party in June 2010 after even the pursuer accepts that they had separated. Similarly, the parties appear to have continued to behave in a manner that evokes cohabitation until the pursuer left.

 

The law

(21)                      In the absence of authority on the issue in the context of an unmarried couple, Miss McLachlan referred me to Banks v Banks[1] where Lord Carloway had to decide when a married couple had ceased living together as husband and wife. Reading together sections 25(1)(a) and 28(1), it seems to me that the same test applies in the present context.

(22)                      Although the 2006 Act does not use the words "in fact" to precede the words living together, I accept that, as Lord Carloway observes,[2] the issue is a matter of fact:

"The ultimate determination of the issue must depend upon the particular circumstances of a given case. As a generality, the Court must look at the issue objectively; no doubt taking into account the illustrative factors mentioned by Professor Clive. There may, of course, be many others which emerge as relevant. The intention of the parties cannot be determinative of the issue. In that sense, there is no absolute requirement for one of the parties to have decided that the marriage or relationship has run its course or that such a decision should have been communicated by one party to the other. However, the intention of the parties and any communication of them to each other may be relevant factors in the equation."

(23)                      The factors referred to by Professor Clive are those canvassed in Husband and Wife[3] at paragraphs 21.075 to 21.081.

(24)                      They include

1.      the amount and nature of time spent together;

2.      living under the same roof;

3.      sleeping together;

4.      having sexual intercourse together;

5.      eating together;

6.      having a social life and other leisure activities together;

7.      supporting each other;

8.      talking to each other;

9.      being affectionate to each other;

10. sharing resources;

11. sharing household and child-rearing tasks;

(25)                      Other than complete separation, none of these is conclusive.

(26)                      Neither Lord Carloway nor Professor McBryde deals with a feature of this case which is public presentation albeit Professor McBryde touches on it in relation to the parties' attitudes to each other[4]. In the present case, the defender maintains that, although she did not make it known in the family, the parties had in fact separated. This is an aspect of the case that raises two questions:

(27)                      Is the presentation of the parties as a couple relevant as a factor in deciding whether they are to be regarded as cohabiting? Does the presentation of the parties as a couple colour the consideration of the indicators as to cohabitation?

(28)                      The issue may have particular relevance in this case as I accept Mark's evidence that he would not have continued to work for free on the defender's house if he had not believed that she and his father were still partners. He put it crisply:"They couldn't have separated in 2009 or all these social events and work wouldn't have happened."

(29)                      This is, of course, not correct: the parties could maintain a pretence of cohabitation for an ulterior motive such as not upsetting the family, having domestic renovation completed or in the hope of reconciliation.

(30)                      But given the public nature of the institution of marriage which underpins the issue I have to decide, I am inclined to answer both questions in the affirmative.

 

The separation

(31)                      The two dates now in contention are the Autumn of 2009 and April 2010. It is common ground that the move to separate bedrooms was triggered by unwanted sexual attentions paid by the pursuer to the defender; only the nature and seriousness of that event is in dispute. The pursuer's date in evidence for this event of the end of October was unsupported by other evidence or even averment but his oral evidence was at least internally consistent. The defender's case is more problematic; I have already discounted her daughter's evidence because of a discrepancy in timing of this event. On balance, the defender's own evidence that the event was "just after" an event on 1 August is strained to be consistent with her having moved out in early September. The nature of the event as she indicates it is not one where there would be any significant delay in moving out. In the circumstances, although I incline more towards the defender's account of the nature of the event, I accept the pursuer's evidence that it occurred at the end of October 2009.

(32)                      It does not follow that this is the date of separation:

I think the following features point to the cohabitation continuing:

1.      Although she moved to a different bedroom and the parties stopped having sex, the defender continued to dress in the main bedroom while the pursuer was present.

2.      She and the pursuer would prepare and eat meals together.

3.      They entertained the parties' grandchildren together.

4.      They entertained the KTs as before, sharing a bedroom and hosting duties in a way that did not indicate change.

5.      Up until at least Christmas 2009 the parties shared household tasks such as shopping, laundry, cooking and dish-washing. They undertook shopping trips together. They shared household expenses such as gas, electricity, council tax, groceries.

6.      At Christmas 2009 the parties entertained family members on Christmas day. The defender gave the pursuer a bottle of aftershave. The pursuer gave the defender a pair of boots. She wanted to change them and a day or two after Christmas the parties went into Aberdeen shops to do this. They spent a pleasant day together.

7.      The parties presented as a couple to their respective families up until the defender forced the pursuer to leave in the Summer of 2010.

(33)                      In sum, it seems to me that on an objective view, the parties cohabited after the defender moved to a separate room in October 2009. They were clearly together until after Christmas that year.

(34)                      As to the exact date of separation, the pursuer's evidence was that it was 16 April 2010, the day after the completion of the renovation of the defender's house that she asked him to leave. I am prepared to take a more charitable view, that there was a process of disengagement on the defender's part between October 2009 and August 2010. While it is difficult to choose a date in these circumstances, the fact that in April 2010 the pursuer realised that the relationship was over makes that a point at which it could be said they were no longer living as husband and wife. I have chosen the date averred by the pursuer at the start of article 7, 29 April 2010, as the date when the defender "chose to end the relationship". After that, they were waiting for the pursuer to leave.

 

Other matters

(35)                      Miss McLachlan moved me to repel the defender's time bar plea and send the pursuer's claim for a capital payment to proof. While that may be the result of my decision, standing the terms of the interlocutor appointing the preliminary proof, I do not feel able to do other than determine the date on which the parties separated.

(36)                      In these circumstances, the proper course in my view is to put the case out for a procedural hearing for further discussion in light of this decision. I shall reserve the issue of expenses for discussion, if necessary, on that occasion.

 

 

Mungo Bovey QC

Sheriff

November 2011