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Scottish Sheriff Court Decisions
You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> J.R. v. A.R. [2012] ScotSC 107 (20 November 2012)
URL: http://www.bailii.org/scot/cases/ScotSC/2012/107.html
Cite as: [2012] ScotSC 107
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SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT ABERDEEN
F793/11
JUDGMENT
of
SHERIFF PETER G. L. HAMMOND
in the cause
JR
Pursuer
against
AR
Defender
Act: Ms. McLachlan, solicitor
Alt: Ms. Smith, solicitor.
ABERDEEN, 20 November 2012.
The Sheriff, having resumed consideration of the cause:
FINDS IN FACT:
1. The parties are as designed in the instance. They were married at Elgin on 7 September 2002.
2. There are two children of the marriage, namely SR and JR, both born on 8th November 2000.
3. The marriage became unhappy. From about late 2010 the Defender's behaviour changed. She became distant from the Pursuer and started spending less time with the family. She neglected the Pursuer. She would go on nights and weekends away with friends without giving the Pursuer any explanation. She provoked arguments with the Pursuer and with the children. She made critical remarks about the Pursuer and the children, both to him and to others.
4. The parties separated on 26th September 2011, which is the "relevant date" in terms of this action for the purposes of the Family Law (Scotland) Act 1985
5. On 26 September 2011, the Defender moved into the spare bedroom following an argument with the Pursuer. On or about 1 July 2012, the Defender moved out of the matrimonial home to live in rented accommodation. Between 26 September 2011 and the date of the Defender's departure, the parties lived under the same roof but not as man and wife. In particular they led separate lives in that period, and have not had marital relations since the relevant date.
6. The marriage has broken down irretrievably. There is no prospect of a reconciliation.
7. The children lived in family with both parties from their birth until the Defender moved out of the family home in July 2012. Since then the Defender has had contact with the children on an informal basis.
8. Both parties have always shared the responsibility for childcare. Their precise roles and extent of involvement have varied with employment demands. By agreement, in the interests of the family, the Defender worked part time to avoid childcare costs and because the Pursuer was the main earner. The Pursuer worked full time. In return for extra remuneration, he undertook additional duties that included overseas travel.
9. When he was at home the Pursuer was a "hands on dad".
10. In recent times, the Pursuer has enjoyed an easier relationship with the children than has the Defender. The Pursuer does not become involved in serious arguments with the children. The children's relationship with the Defender is more confrontational, which leads to arguments which the Defender has difficulty managing.
11. S has always been closer to the Pursuer than the Defender. J has been closer to the Pursuer since late 2010. Since that time the Defender has given the children less of her attention. This has resulted in upset to the children.
12. At about the end of October 2011, when the Pursuer was away from home, the children were upset because the Defender refused to allow them to telephone him.
13. On 24 January 2012, there was a confrontation between the children and the Defender when the Pursuer was away from home. This concerned J's wish not to go to life-saving. The Defender grabbed J by the hand and there was a struggle. This upset the children. The Pursuer received a distressed voicemail message from S asking for help.
14. Both parties have sufficient flexibility in their employment arrangements to allow for any childcare responsibilities. In the event of the parties requiring assistance, both have friends and family who would be willing and able to help, although the Pursuer's parents live in Sri Lanka. The Pursuer would firstly ask the Defender to help out in looking after the children.
15. Both parties have satisfactory living arrangements and accommodation for the children to stay.
16. There are no grounds for welfare concerns about the ability of either parent to look after the children properly and appropriately.
17. The children are twins. They reached the age of 12 on 8 November 2012. They are of sufficient maturity for their views to be taken into account. They have both told the Pursuer that they wish to reside with the Pursuer, and have regular contact with the Defender at weekends and at holidays. Both children have expressed views to the Court confidentially by means of F9 Forms which were received by the Court on 24 February 2012. These views do not disclose anything inconsistent with what they have told the Pursuer. There are no reasons why these views should not be accorded weight.
18. A joint sharing of residence would not be workable. It would increase the potential for on-going conflict between the parties, to the detriment of the children.
19. The Pursuer is employed by Aberdeen City Council as a Senior Partnerships and Funding Executive. Prior to this he worked for Moray Council. He has been employed by Aberdeen City Council since July 2006. He earns approximately £2,550 net per month. He has no savings or capital, other than his interest in the matrimonial home and his pension entitlements.
20. The Defender works part time an office manager for Centrifuges Unlimited. She earns approximately £1,390 net per month. The Defender has no savings or capital.
21. As at the relevant date the matrimonial assets included:-
(a) the matrimonial home, title to which is held in joint names. The current value of the property is £310,000. The property is subject to a mortgage in the joint names of the parties with Halifax/Bank of Scotland,
(b) the contents of the former matrimonial home;
(c) the Pursuer's interest in the pension scheme operated by Aberdeen City Council (including his interest in the pension scheme operated by Moray Council) with a Cash Equivalent Transfer Value of £61,823.13;
(d) the Pursuer's interest in the pension scheme operated by Standard Life with a Cash Equivalent Transfer Value of £11,672.73;
(e) the Defender's interest in the pension scheme operated by Moray Council with a Cash Equivalent Transfer Value of £2,933.76,
(f) the sum at credit of the HSBC bank account in the name of the Pursuer, namely £807.62;
(g) the sum at credit of the RBS bank account number 00176286 in the name of the Defender, namely £650.00;
(h) the sum at credit of the RBS bank account number 00295811 in the name of the Defender, namely £124.68;
(i) the sum at credit of the RBS bank account number 00130988 in the name of the Defender, namely £139.20;
(j) the Pursuer's Peugeot 407 motor vehicle, registration number R4 JMY. A valuation will be produced;
(k) an Omega watch with a value of £1,800;
(l) the proportion of the parties' respective entitlement to additional state pension benefits which accrued during the marriage, namely £77.21 in respect of the Pursuer, and £3,699.74 in respect of the Defender.
22. The total value of the matrimonial assets is £399,678.07. The total value of the matrimonial assets, excluding the matrimonial home, is £89,678.07.
23. The total value of the matrimonial assets held by the Pursuer is £80,330.69.
24. The total value of the matrimonial assets held by the Defender is £9,347.38.
25. The matrimonial debt comprised the following:
(a) the parties' joint mortgage with Halifax Bank of Scotland. The balance outstanding was £176,914.62 as at 1 December 2011. The redemption figure in respect of the mortgage is £175,003.50 as at 11 June 2012.
(b) the Pursuer's loan account with Barclays, with an outstanding balance of £6,032.13;
(c) the outstanding balance in respect of the Pursuer's credit card with Barclays, namely £8,123.93;
(d) the outstanding balance in respect of the Pursuer's credit card with RBS, namely £3,359.36;
(e) the outstanding balance in respect of the Pursuer's store card with Debenhams, namely £752.73;
(f) the outstanding balance due to the energy savings trust in the name of the Pursuer, namely £3,487.98;
(g) the outstanding balance in respect of the Defender's credit card with Marks & Spencer, namely £5,533.34;
(h) the Defender's RBS loan account number 00772636 with an outstanding balance of £3,367.10; and
(i) the Pursuer's loan account with HSBC with an outstanding balance of £17,635.69.
26. The total value of the matrimonial debts in the name of the Pursuer as at the relevant date is £39,391.82.
27. The total value of the matrimonial debts in the name of the Defender as at the relevant date is £8,900.44.
28. The Pursuer and the two children currently reside in the matrimonial home. The Defender resides in separate rented accommodation nearby. At this time, neither party would be able to buy outright the other's interest in the said matrimonial home.
29. Following the raising of this action, the parties agreed to market the matrimonial home. A preliminary Minute of Agreement regulating the marketing and sale of the property and some incidental issues was executed on 5 and 9 March 2012 and registered in the Books of Council and Session on 14 March 2012.
30. The property is being marketed by Simpson & Marwick. It entered the market on 20 March 2012 with an asking price of offers over £320,000. In about September 2012 the price was reduced to a fixed price of £310,000. As at the date of the conclusion of the proof it had not been sold.
31. Following the sale of the matrimonial home, the Pursuer's needs will be for a 3 bedroomed house in the Kintore area to accommodate the children in the area where they go to school.
32. A suitable three bedroomed house in Kintore would cost approximately £200,000. The Pursuer would require to pay a deposit and take out a mortgage. His present monthly mortgage payments are £1,100. To obtain a suitable mortgage for a new property which would keep his monthly payments at the same level, he would have to pay a deposit of approximately £40,000.
33. A three bedroomed house in Kintore would cost approximately £900 to £1,500 per month to rent. The Defender has obtained a lease of a three bedroomed house in Kintore for a year from 29 June 2012. The rent is £900 per month
34. The parties have agreed that the contents of the matrimonial home will be divided equally between them.
FINDS IN FACT AND LAW:
(1) This court has jurisdiction.
(2) The marriage of the parties has broken down irretrievably by reason of the Defender's behaviour.
(3) The parties separated on 26 September 2011, which is "the relevant date" in terms of the Family Law (Scotland) Act 1985.
(4) It is in the best interests of the children that a residence order be granted in favour of the Pursuer.
(5) It is in the best interests of the children that an order for contact be granted in favour of the Defender.
(6) Having regard to the Children (Scotland) Act 1995 section 11, it is better for the children that said orders for residence and contact be made than they not be made.
(7) The parties' net matrimonial property at the relevant date was £ 170,921.
(8) There are no principles or special circumstances to be applied which would justify a departure from the equal sharing of the matrimonial property between the parties.
(9) It would expedient to achieve fair sharing of the net value of the matrimonial property to make an incidental order under s 8(2) and 14(2)(c) of the 1985 Act, determining the parties' respective rights in the net free proceeds of the sale of the matrimonial home by ordering that the net free proceeds be divided equally between the parties; but subject to an ancillary order under s 14(2)(k) ordering that the Defender should make a capital payment to the Pursuer of £10,000 therefrom by way of a counterbalancing payment.
(10) It would be expedient to achieve fair sharing of the net value of the matrimonial property to make a pension sharing order providing that the Pursuer's shareable pension rights in his Standard Life pension plan be subject to a pension sharing order for the benefit of the Defender in the sum of £11,673
(11) It would be expedient to achieve fair sharing of the net value of the matrimonial property to make a pension sharing order providing that the Pursuer's shareable pension rights in his Aberdeen City Council pension scheme be subject to a pension sharing order for the benefit of the Defender in the sum of £18,572.
(12) The making of the incidental orders and pension sharing orders herein referred to are justified by the principles set out in section 9 of the Family Law (Scotland) 1985, and reasonable having regard to the resources of the parties.
THEREFORE sustains the Pursuer's 1st, 2nd, and 4th pleas in law; sustains the Defender's 2nd and 4th pleas in law; sustains (in part) the Defender's 5th and 6th pleas in law; Quoad ultra repels the parties' pleas in law; grants decree divorcing the Defender from the Pursuer; makes a residence order in respect of the children SLR and JDYR whereby they are to live with the Pursuer; makes a contact order in respect of said children whereby they are to have contact with the Defender (a) on a residential basis every second weekend from Friday after school until the following Monday when school commences, (b) for one half of each of the children's school holidays at Easter, Summer, October and Christmas, (c) on alternate Christmas Days and birthdays (d) at such other times as the parties may agree from time to time; makes an incidental order under s 8(2) and 14(2)(c) of the 1985 Act, ordering that the net free proceeds of sale of the matrimonial home should be divided equally between the parties; makes an ancillary order under s 14(2)(k) ordering that the Defender should make a capital payment to the Pursuer of £10,000 out of her share of the net free proceeds of the said matrimonial home and that within 30 days of the sale thereof; makes a pension sharing order in terms of section 8 (1) (baa) and 8A of the Family Law (Scotland) Act 1985 providing that the Pursuer's shareable pension rights in his Standard Life pension plan shall be subject to a pension sharing order for the benefit of the Defender in the sum of £11,673 with interest to be paid at the rate of 8 % per annum from the date of the parties' separation (26 September 2011) until the date of transfer of the appropriate pension credit into a qualifying scheme takes place; makes a pension sharing order in terms of section 8 (1) (baa) and 8A of the Family Law (Scotland) Act 1985 providing that the Pursuer's shareable pension rights in his Aberdeen City Council pension scheme shall be subject to a pension sharing order for the benefit of the Defender in the sum of £18,572 with interest to be paid at the rate of 8 % per annum from the date of the parties' separation (26 September 2011) until the date of transfer of the appropriate pension credit into a qualifying scheme takes place; in terms of s 8A, directs that the charges for implementing said pension sharing orders should be apportioned equally between the Pursuer and the Defender; reserves meantime all question of expenses, and appoints the parties to be heard thereon on 6 December 2012 at 9.30 a.m. within the Sheriff Courthouse at Aberdeen.
NOTE
Introduction
[1.] This is an action of Divorce on the grounds of the Defender's behaviour, wherein the parties ask the court to make appropriate orders to regulate the residence and contact arrangements in respect of the children, and effect a fair division of the matrimonial property.
[2.] The Proof took place over 5 days. I heard evidence on behalf of the Pursuer from the Pursuer himself, Andrew Grant and Gordon McIntosh. I was also referred to affidavits from the Pursuer's parents. On behalf of the Defender, I heard from the Defender herself and Mrs Debbie Wilde, Nick Slater, Lorraine Munro and Keith Ewan. I was referred to an affidavit from Hannah Burbridge. I was further assisted by a "Note of Disputed Issues for the Parties", two joint minutes of admission and written submissions on behalf of both parties.
[3.] The two controversial issues were the residence of the two children, and the division of the matrimonial property. It was acknowledged by both parties that whichever parent was granted residence, the children should have substantial contact with the other. No question of separating the children arose. In relation to financial provision on divorce, the only substantial assets comprised in the matrimonial property were the matrimonial home and the parties' pension funds. It was acknowledged that a fair division of the net matrimonial property would be an equal division, but there was a dispute about how that was to be achieved. By the time of the Proof, parties had agreed that the house was to be sold and that an order for sale would not be required. The essential question came to be how the net free proceeds of sale of the house should be distributed in the interests of fairness having regard to the parties' needs, and how any resulting imbalance could be fairly offset by making orders in relation to the pensions.
[4.] The parties were married on 7 September 2002. The children S and J are twins. They are now 12 years old; having been born on 8 November 2000. The parties had lived together as a family until 26 September 2011, which is agreed as the relevant date for the purposes of the Family Law (Scotland) Act 1985. From that date the parties lived separate lives, although they lived under the same roof for practical purposes until the Defender moved out to a rented house nearby on about 1 July 2012.
The merits - Divorce
[5.] It was clear that the marriage had become toxic. In the course of their evidence, both parties attacked the conduct of the other. My impression was that there were faults on both sides, but I felt that they tended to exaggerate in describing the conduct of the other. Although the first anniversary of the separation took place before the proof was concluded, there was no inclination to amend the basis of the action to one based on consent, and I was asked to make findings in relation to the Defender's behaviour. Ultimately, the Defender did not oppose the granting of divorce on the grounds advanced by the Pursuer.
[6.] In considering the terms of the Pursuer's evidence and the supplementary affidavit of his mother, Mrs Lashmi Ratnayeke, no 5/9/1 of process, I am satisfied that there is just sufficient evidence to justify the granting of decree of divorce.
Residence and Contact
[7.] The Legal Framework
The Children (Scotland) 1995 Act provides:
Section 11(1):
"in proceedings in the [...] sheriff court, whether those proceedings are or are not independent of any other action, an order may be made under this subsection in relation to-
(a) parental responsibilities;
(b) parental rights; [...]"
Section 11(2):
"(2) The court may make such order under subsection (1) above as it thinks fit; and without prejudice to the generality of that subsection may in particular so make any of the following orders-
[...] (c) an order regulating the arrangements as to-
(i) with whom; or
(ii) if with different persons alternately or periodically, with whom during what periods,
a child under the age of sixteen years is to live (any such order being known as a "residence order");
(d) an order regulating the arrangements for maintaining personal relations and direct contact between a child under that age and a person with whom the child is not, or will not be, living (any such order being known as a "contact order"); [...]"
Section 11(7):
"...in considering whether or not to make an order under subsection (1) above and what order to make, the court-
....(a) shall regard the welfare of the child concerned as its paramount consideration and shall not make any such order unless it considers that it would be better for the child that the order be made than that none should be made at all; and
(b) taking account of the child's age and maturity, shall so far as practicable -
(i) give him an opportunity to indicate whether he wishes to express his views;
(ii) if he does so wish, give him an opportunity to express them; and
(iii) have regard to such views as he may express".
Section 11(10):
"Without prejudice to the generality of paragraph (b) of subsection (7) above, a child twelve years of age or more shall be presumed to be of sufficient age and maturity to form a view for the purposes [...] of that paragraph [...]"
Pursuer's Submissions
[8.] There is no dispute about the need for a residence order to be made in favour of one of the parties. The Pursuer invited me to make a residence order in his favour in relation to both of the children.
[9.] According to the evidence, the parties agreed that the Defender rather than the Pursuer would work part time for financial reasons; namely to avoid childcare costs, and because the Pursuer was the main earner. He assumed additional responsibility at work which involved a commitment to travel overseas. This was for the financial benefit of the family.
[10.] The Defender admitted that the Pursuer had always taken leave in the school holidays to look after the children. She also admitted that he had stayed at home to look after the children if either of them were sick.
[11.] The parties have always shared responsibility for childcare; including getting the children ready for school, preparing meals, assisting with homework, taking the children to their activities, bedtime routine and showering, caring for them during weekends, holidays, in-service days and when they were sick. Although there were some differences regarding the extent of the Pursuer's involvement, the Defender agreed that he was a "hands on dad" when he was at home.
[12.] In terms of discipline, the Pursuer reasons with the children if they are misbehaving and finds that they will accept his directions. The Defender considers that the Pursuer does not discipline the children and that she is the one who does so. They are generally well behaved in the Pursuer's care. When they do require direction, or when there is "friction", the Pursuer listens to them and reasons with them. According to the Pursuer, arguments and "shouting matches" do not arise between him and the children because he listens to their views and reasons with them. They respond well to the Pursuer.
[13.] The Defender accepted that there were no arguments between the Pursuer and the children. She claimed in evidence that the children would not talk back to the Pursuer because they are frightened of him, but this was not put to the Pursuer and no other supporting evidence was offered in this regard by the Defender. The assertion that the children are afraid of the Pursuer appears to be at odds with the evidence of the Pursuer, Lakshmi Ratnayeke, Joseph Ratnayeke, Pieter van West, and Andrew Grant.
[14.] The Pursuer gave evidence of frequent arguments between the twins and the Defender which he attributed to her "dictatorial" style of parenting. The Defender accepted that there were arguments between her and the twins. She accepted that the Pursuer's mother had witnessed some of these.
[15.] According to the Pursuer, the children are both more attached to him than to the Defender. The children look to him more often than the Defender for comfort, reassurance, advice, affection and attention.
[16.] According to the Pursuer, the Defender often ignores the children, especially if she is using her mobile telephone. The children find this lack of attention upsetting and frustrating. He has heard the children berating the Defender for failing to pay attention to them when they have asked her for help with homework. In evidence the Defender stated that she "never" ignored the children when they want attention.
[17.] The Pursuer gave evidence that S has always been closer to him than to the Defender
[18.] The children have been distressed as a result of the Defender's behaviour towards them in recent months. In particular, the Pursuer gave evidence that they were distressed when the Defender refused to allow them to call him when he was away from home around the end of October 2011.
[19.] There was another incident on 24th January 2012 when he was again away from home. On that occasion, the twins were extremely upset when J decided that he did not want to go to life-saving and the Defender refused to accept this. The Pursuer said that he had received a voicemail from S on his mobile phone in which she asked for help. The children later told him that the Defender had dragged J along the floor when he didn't want to go to life-saving, and that she had only released him when he threatened to call the Police. The Defender denied that S had witnessed the incident. In evidence she stated that "J doesn't like to go...I'd paid money. If they commit then I'd say he has to go". She accepted that she had "maybe grabbed his hand".
[20.] The children have continued to rebel against the Defender. The Pursuer gave evidence of an argument between S and the Defender in relation to S's piano. The Defender's witness, Deborah Wilde, gave evidence of an argument between the twins and the Defender a few days before the Proof which she attributed to the twins being "tired". She also commented that the twins now had "outbursts" and would shout at the Defender.
[21.] The Pursuer is able to fulfil all of the responsibilities of being the main carer for the children. The Defender appears to dispute only his ability to adjust his work commitments. She admitted that he was a "good parent" in cross examination.
[22.] The Pursuer reverted to working normal hours (as opposed to compressed hours) at the start of 2012, his employer having approved such a change. The Pursuer's employer has approved a reduction in his travel commitments. He would be happy for the Defender to care for the twins while he is away, and would ask her if she could do so in the first instance. Alternative cover could be arranged if care could not be arranged for the children. It would be possible to arrange cover for these trips in the event of an emergency. He plans to phase out these trips.
[23.] The Pursuer is entitled to 35 days annual leave per year. His employer offers a flexible working scheme, which includes working from home. He intends to work from home two days per week and in the office three days per week from 9am until 3pm. He intends to make a flexible working request if a residence order is granted in his favour
[24.] He is also eligible to participate in a "flexi time" scheme and a "Time Off in lieu" (TOIL) scheme at work. These schemes would entitle him to take time off during the day, through building up credit by working certain extra hours at other times.
[25.] The Pursuer submitted that if a residence order were granted in his favour, the evidence showed that he had adequate backup. He would ask the Defender to assist with childcare if he required help as a result of work commitments. Although his parents live in Sri Lanka, they were regular visitors to the UK. They have been involved in the children's care throughout their lives, especially during the summer months They could provide additional support with childcare between them, although that would be unlikely so long as the Defender continues to be involved in the care of the twins. As with most children, the stay with friends overnight from time to time. Friends may be able to assist with childcare on occasions, if required.
[26.] If a residence order is granted in favour of the Pursuer, he would facilitate and encourage regular contact with the Defender, including residential contact and holiday contact. This would include contact on the children's birthdays and at Christmas. The children started secondary school on 22nd August 2012. The Pursuer recognises that the contact arrangements may require to be varied in the future depending on the needs of the children and taking account of any change in their views. He intends to discuss the needs, wishes and welfare of the children with the Defender on an on-going basis.
[27.] It was further submitted on behalf of the Pursuer that the children have advised the parties that they wish to reside with the Pursuer. They have stated to the Pursuer that they wish to have regular contact with the Defender on weekends and during the holidays, but that they do not wish to have residential contact with the Defender on school nights.
[28.] The twins will reach the age of 12 on 8th November 2012. Their views have been clearly expressed to the parties and to the Court. The children are of sufficient age and maturity to form a view about their future care and residence. Unless the children do not understand what is being proposed, or are unclear, or have been inappropriately influenced in their views, the court should conclude that acceding to their wishes is likely to be in their interests.
[29.] In her evidence, the Defender disputed that the children were sufficiently mature to understand the implications of having given their views to the Court. In cross examination however, she accepted that the twins were reasonably mature for their age, "S more so than J". She stated that they are "only thinking of now". In cross examination, she also agreed that the twins had told her that they wished to live with the Pursuer and that they wanted to "see" her.
[30.] The Defender stated in evidence that the children's views should not be taken at face value for a number of reasons. She suggested that they had been manipulated by the Pursuer, but this was not put to the Pursuer and no supporting evidence was offered. She claimed that the children might tell the parties different things in relation to where they would like to live because they were "afraid of him". Again, this was not put to the Pursuer, and was unsupported by other evidence. The Defender also thought S would be afraid of hurting the Pursuer's feelings.
[31.] The children had the opportunity to give their views to the Court by way of Form F9s which were completed at school and sent to the Court. If the Defender considered that the views contained in the Form F9s might have changed or been inappropriately influenced by the Pursuer, she did not seek to have the views captured in a different way or to have them updated either before or during the Proof. The children's views have both been consistently in favour of living with the Pursuer.
[32.] It was submitted on behalf of the Pursuer that the court should attach very significant weight to the very clear views expressed by the children. Their maturity can be seen by the thoughtful way they have considered how they would like to maintain a relationship with the Defender if they are to live with the Pursuer. They have told the parties that they wish to live with the Pursuer and have regular contact with the Defender. In particular S told the Pursuer that she would like to stay with the Defender every second weekend and have dinner with the Defender one night during the week. J told the Pursuer that he would like to stay with the Defender every second weekend. Neither child wishes to have residential contact with the Defender on school nights although they would like to have non-residential contact with her. Both parties agreed that the twins could easily come and go from their respective properties for the time being, given that they are currently residing within walking distance of the other. Since separation the parties have shared weekends and holiday time with the twins without intervention from the Court (with the exception of the specific issue order granted 24th April 2012).
[33.] The children have been unsettled with the Defender for some time. They rebel against her and argue with her. They are at an age where it would be counterproductive to force them to live with the Defender. The Defender was unwilling to accept this.
[34.] Granting a residence order in favour of the Defender or even a joint residence order is likely to damage the relationship that they have with the Defender. Granting a residence order in favour of the Defender or even a joint residence order will undermine the clear views of the children.
[35.] It was submitted that the Pursuer's evidence has been credible and reliable throughout, in contrast to that of the Defender. Her evidence has lacked consistency at times. In attempting to attack the character of the Pursuer, her evidence lacked credibility and was unreliable. It was also irrelevant in that it did not focus on the welfare needs of the children.
[36.] The Defender refused to attend mediation or a joint meeting both pre-litigation and after proceedings had been raised, to discuss the future care arrangements for the children and to attempt to limit the tension in the matrimonial home. She failed to make proposals, either via her solicitor or to the Pursuer, as to how the parties might resolve the future care arrangements. She simply opposed the making of a residence order in favour of the Pursuer and sought a residence order in her own favour.
Defender's submissions
[37.] On behalf of the Defender, it was submitted that the Pursuer's evidence was contradictory and the court should prefer the position of the Defender. The Pursuer gave evidence that J and S do not argue with him, but subsequently admitted to having friction with them over what he referred to as silly matters. These seemed to be the very sorts of things that the he described as "arguments" when applied to the Defender.
[38.] The Pursuer has described the Defender as approaching parenting in a 'dictatorial style' and that J and S rebel against this style of parenting. However this is the same approach to parenting that the Defender has always taken with the children and the Pursuer has not given any evidence to this court that he was unhappy with the Defender's approach prior to the parties' separation. The Pursuer has also given evidence that when the children do not get their own way with the Defender that they will shout at her, but he accepted that he did not intervene or provide support to the Defender on such occasions and would simply ignore what was happening.
[39.] The Pursuer claimed that he valued the stability of the children's routine, but seemed to want to change his work commitments and the arrangements for the children rather than involve the Defender in achieving continuity. The Pursuer wants to change the routine from what the children are used to and comfortable with.
[40.] The court should be sceptical of the Pursuer's claim that, in the future, he intends discussing issues involving the children with the Defender. He has contradicted himself by saying at the same time that he cannot talk sensibly with the Defender and so has avoided talking to her. For example, he alleges he had to cut short a work trip abroad in October 2011, when he received a telephone call from S in which she stated the Defender was not allowing her to call him. The fact that S was calling at all shows that this is not the case and contradicts the Pursuer's opinion that the children do not lie or exaggerate. Rather than speak to the Defender to get her side of the story, he cut his trip short and returned home. All this could have been avoided if the Pursuer had simply spoken to the Defender.
[41.] The Pursuer's insistence that he can meet all the children's needs with the help of his parents coming over from Sri Lanka from time to time suggests that he would not be inclined to look to the Defender for assistance with the children in the first instance. The court can infer that the Pursuer seeks to side-line the Defender as far as possible.
[42.] The Pursuer has asked the children to keep a note of the things the Defender has said when he was out of the house. He has also told the children to delete the text messages he sent to them, and any they sent to him. This an entirely inappropriate attempt to involve them in their parents' marital difficulties, and shows the Pursuer is prepared to use underhand means to look for evidence which he hopes might support his case for residence.
[43.] The Defender has never disputed that the Pursuer loves the children. However, the Pursuer's attitude and actions towards the Defender, often displayed in front of their children, is a cause for concern. There is no evidence that the Pursuer can shoulder the main burden of childcare other than during holiday periods where routine and consistency are not important. The Pursuer's evidence is flawed and his proposals are inconsistent with what the children know and are used to in terms of their routine. His unwillingness to parent the children alongside the Defender shows a blinkered approach to fully thrashing out what truly is in the best interests of J and S.
[44.] The Defender believes that J and S will have given their views to the parties, and to the court, based on their thoughts at the time of being asked rather than after considering or fully understanding the overall implications of their opinions and expressed wishes. She therefore invited me not to treat the children's stated wishes at face value, but take into account their immaturity
[45.] The Defender readily accepted that she does not always respect the children's wishes. Instead as a parent she makes decisions based on what she perceives to be in their best interests. She accepted that she has been short-tempered with the children and has shouted at them on occasions. All of these reactions are a perfectly a normal part of the life of any parent.
[46.] I was invited to find the Defender's witnesses credible and reliable, in contrast to the Pursuer's witnesses. Deborah Wilde was unbiased. Lorraine Munro has known the family for a long time and has been fair and honest. Her brother, Keith Ewen was commendably neutral and in his evidence he did not take sides. Andrew Grant gave evidence for the Pursuer based on his limited experience of spending time with the Pursuer and the children. He did not see the Defender and the children and accordingly his evidence cannot be used to compare their parenting styles or abilities. He does not appear to have seen or heard anything of significance that would assist the court in reaching a decision about what living arrangements are in the best interests of the children. His invitation to the house on the weekend concerned appears to have been at the instigation of the Pursuer with the aim of setting up a witness who was able to attend the Proof and give evidence in support of his position.
[47.] Affidavit evidence has been produced by Miss Hannah Burbridge on behalf of the Defender. It is clear to see that Hannah does not have fond memories of growing up around the Pursuer and without the ability to examine and cross examine her on this, it will remain untested. However Hannah is able to give evidence from her perception of what the twins have grown up with and can see now, as an adult, what 11 year old children cannot see for themselves and that is often what is actually best for them.
[48.] The Affidavits submitted by the Pursuer were provided by his mother and father. Understandably they support their son's request that the children live with him. They both indicate they would be willing to travel regularly from Sri Lanka to Scotland and obtain the necessary visas in between visits to assist the Pursuer with childcare yet neither have travelled here to give evidence despite neither having work commitments that they claim cannot be worked around. Neither have mentioned the Pursuer's mother's ill health in terms of her Glaucoma. Neither has mentioned that they themselves are separated and accordingly co-ordinating who should travel 'this time' may not be quite as easy as indicated. No comparison has been possible between the Defender's parenting and the Pursuer's parenting save the statement that the children are always happy when with the Pursuer.
[49.] When considering whether or not to make any Order in relation to parental rights and responsibilities, the Court is required to have regard to the principles set out in S.11(7) of the Children (Scotland) Act 1995 whereby 'the Court (a) shall regard the welfare of the child concerned as its paramount consideration and shall not make any such Order unless it considers that it would be better for the child that the Order be made than that none shall be made at all.'
[50.] In this action it is clear that such an Order regulating the children's residence is required as a result of the parties being unable to reach an agreement on what is in the children's best interests. The Defender believes that it is in J and S's best interests that they continue to live with her. Failing that, the next best thing would be to have a flexible shared care arrangement.
[51.] It was submitted that the status quo for a child is not just about the house in which they live, but relates to the routine to which they are accustomed and in which they are thriving. I was reminded that the Defender has worked part-time for the entire duration of the children's lives in order to look after them and be at home for them. In addition the Defender has also maintained the running of the house and household chores.
[52.] In relation to the views of the children, while a child has the right to be heard in residence disputes, a child does not have the right to decide where he or she should live. Furthermore, the children were 11 years of age at the time they completed Form F9s a number of months ago. It is difficult for the court to assess the maturity of the children, and the weight to be given to any views expressed, in the absence of further evidence. Expressing an opinion does not mean they are automatically of sufficient maturity to understand the meaning and far reaching effects of that opinion.
[53.] We have heard evidence from the Pursuer that he would be in a position to change his work commitments. What has also been evidenced is that despite being able to make these changes, the only change that has occurred is that the Pursuer works Monday to Friday instead of Monday to Thursday. The Pursuer's contract hours remain unchanged. His core hours remain unchanged and his requirement to travel as part of his job role remains in place as at the time of the Proof. The Pursuer has indicated that the care arrangement options would be his mother or his father depending on whichever one was staying with him at the time. No mention is made of contacting the Defender.
[54.] The Defender has referred to what she considers to be the Pursuer's secretive nature. He refused to disclose his whereabouts when travelling for work. He encouraged the children to keep records of what their mother said. He made up a false email address for a private investigator, followed the Defender and subsequently emailed her colleague's wife regarding his suspicions. This suggests that the Pursuer is controlling and manipulative towards her, and she is concerned that J and S are also being manipulated and controlled by their father in relation to what purport to be their views.
[55.] For all these reasons, the Defender submitted that she should be awarded residence of the children. Her approach to parenting has given J and S a consistent routine with mealtimes, bedtimes, schooling and activities, and allowed them to thrive in an environment of freedom and responsibility appropriate to their age and maturity. She is able to provide clear parental boundaries and rules. Should the children reside with her after decree, she would maintain their routine without the need to disrupt their schooling, friendships and activities; and without having to alter her own existing work commitments. She would be able to keep on her part time employment and fit that in around caring for the children. She has shown a clear willingness to contact the Pursuer to discuss any situations which may leave her unable to look after the children and look to work with him in facilitating childcare. She is not seeking to restrict the children's relationship with their father, and is willing to work on her own relationship with the Pursuer for the sake of the children.
Decision
[56.] Both parties claim that they are in a better position than the other to look after the children. However, they have both shared childcare during the children's upbringing, commensurate with their respective work responsibilities and earning potential. They both ultimately accepted that the other was not a bad parent. The Pursuer's evidence was that he had no concerns about the Defender looking after the children, and would rather she did so than an outsider become involved. For her part, the Defender stated that the Pursuer is a good father to the children. Despite that, both parties made a great play of anything negative that they could find to say about the other. I felt that they both tended to exaggerate. The effect of all this evidence was to reinforce my impression that they both loved the children, but at times they could each be immature, devious and difficult towards each other.
[57.] There was much evidence about the parties' working arrangements, and whether their respective employments would be sufficiently flexible to work round the exigencies of child care responsibilities. I am quite satisfied on the evidence that both parties have demonstrated a commitment to adapt their working lives around the children if a residence order were made in their favour, and that their respective employers would be flexible enough to accommodate that.
[58.] The Defender suggested that the Pursuer would not have suitable child care back-up, as his parents live in Sri Lanka. The Pursuer pointed out that in the first instance, if he needed back up he would be willing to ask for the help of the Defender. In her evidence the Defender confirmed that she would be willing to make available whatever help he needed. While I have some reservations about this given the parties' difficulties talking to each other, I am prepared to accept the Pursuer's evidence at face value. This is on the view that he did appear in his evidence to recognise the role that the Defender has to play as the children's mother, and that it would be in the children's best interests for their mother to be involved in this way.
[59.] In my view the significant factors in deciding where the children ought to stay are the nature of the children's relationship with each parent, and the views of the children.
[60.] According to the Pursuer's evidence, which I accept, the Defender's relationship with the children ran into a difficult phase at about the end of 2010. Until then, S was closer to the Pursuer and J was closer to the Defender. Since then, it appears that both children have become closer to the Pursuer. I believed the Pursuer's evidence that there had been a lot of arguments between the Defender and the children, and their reluctance to accept her authority had led to conflict which the Defender was unable to resolve. The children have continued to rebel against her. The Defender accepted that she had argued with the children, whereas arguments were not a notable feature of the Pursuer's relationship with them. The Pursuer recalled a number of incidents which had been distressing for the children, such as the incident in October 2011 when the Defender attempted to refuse to allow them to contact the Pursuer when he was away from home. Another example was the incident on 24 January 2012, when the children became very upset over the Defender's attempt to get J to go to life saving classes, and S left a voicemail for the Pursuer asking for help. According to what the children told the Pursuer, the Defender dragged J along the floor, and only released him when he threatened to call the police. The Defender admitted that there had been an incident when she may have grabbed J's hand, but nothing more than that happened. It would be realistic and fair to recognise that the Defender may well have been faced with some challenging behaviour. I am also prepared to accept that this incident may have become overblown in the retelling, but whatever actually happened, it does depict a difficulty on the part of the Defender in managing the children in a non-confrontational way. I considered it of some significance that the Defender accepted in her evidence that the children "have little respect for me at present".
[61.] Turning to the views of the children, I regard this as the significant decisive factor in deciding where they should live. They have expressed views to the parties that they wish to live with the Pursuer and have regular contact with the Defender. They have been consistent in expressing these views. They have taken the opportunity to express their views to the court in writing. These views are entitled to be treated as confidential. However, suffice it to say that there is nothing in what has been provided to the court in this way that contradicts what they have already told the parties openly. Although the F9 forms were completed by the children earlier this year, they have within the last few days reached their 12th birthday, at which point they are presumed for statutory purposes to be of sufficient age and maturity to form a view about their future care and residence [1995 Act s 11(10)]. It is clear that they have given thoughtful consideration to what they would like for the future. While the Defender is correct to observe that it is not simply a question of leaving it up to the children to decide where their best interests lie, they have clearly and consistently expressed views over a substantial period of time. I am of the opinion that they are sufficiently mature that their views are entitled to be respected and given due weight in the absence of concrete evidence to suggest otherwise.
[62.] In the course of her evidence, the Defender commented that they were "intelligent children and reasonably mature for their age". I found it somewhat inconsistent that she nevertheless maintained that they were not mature enough to understand the implications of giving their views to the court. In the context of a discussion with the children about the content of the F9 forms they submitted to the court, she gave an account of a conversation with J when he stated to her "I know what I said but I'm just a silly boy!" However I did not find this likely. It struck me as a crude attempt to undermine the children's views. She also thought they had been manipulated by the Pursuer into expressing the views they did, although this was not explored in cross examination of the Pursuer and there was no evidence to suggest this. Neither was there any evidence to support the Defender's suggestion that the children might be telling the Pursuer they wanted to live with him because they were scared to tell him anything else. For the reasons given by the Pursuer, I was satisfied that it would be appropriate to rely on the children's views.
[63.] As noted above, both parties led evidence from other witnesses, including in affidavit form, about their relationships with the children. This evidence pointed both ways. Generally the witnesses were supportive of the party calling them, and I had no reason to doubt that they were trying to do their best to tell the court what they could. However, some of the evidence related to fleeting or occasional encounters or experiences with one or other of the parties alone with the children. I did not find this kind of evidence about glimpses of family life particularly helpful in resolving the issues before me; even less so when that evidence was in affidavit form without the opportunity of seeing the witness being tested.
[64.] The Defender's daughter by a previous marriage, Hannah Burbridge, had been accepted into the family by the Pursuer. She is now 24 years old. The Defender thought it appropriate to bring her into this dispute by way of producing an affidavit. She is bitter about the Pursuer and clearly has no time for him at all. However the affidavit makes it clear that this witness blames the Pursuer for the break-up of her own parents' marriage, and I am not able to draw any relevant inferences from her own experiences with the Pursuer which would help me decide matters relating to S and J. Hannah Burbridge also contradicts herself at times. She states that "...Y has always been a bully and bullied my mother into doing what he always wanted to do or buy..." Yet, elsewhere in the affidavit she states that she accepted the fact that he was there "..because he made my mum happy and that's what I thought was the main thing." I am therefore unable to place any weight on this affidavit. If she had been adduced as a witness, objection could have been taken to irrelevant lines of evidence, and I would have had an opportunity to assess the witness in relation to anything that was relevant.
[65.] Prior to the close of the parties' submissions, I invited agents to address me as to the practicalities of a joint residence order. Neither party saw that as desirable but did put forward suggestions how it might operate if it was forced on them. However it was clear that each party only saw that option as a final fall-back position, to be conceded only in preference to losing the residence claim. Moreover, I have come to the view that the parties' relationship is such that, at the moment, it would not be realistic to suppose that they could work together harmoniously with the degree of co-operation over decisions in the children's lives which joint residence would entail. Such an arrangement would be a recipe for bringing the parties into conflict, and this would in turn be harmful to the children and counter-productive. For these reasons I have ruled it out.
[66.] In conclusion, I am satisfied that it is better for the children that orders for residence and contact be made than not made, and that these orders should reflect that they are to live with the Pursuer. No question of separating the children arises.
[67.] There is no dispute that the children should enjoy regular and extensive contact with the Defender. Having considered the submissions, I will makes a contact order in respect of said children, in the terms sought by the Defender, whereby they are to have contact with the Defender (a) on a residential basis every second weekend from Friday after school until the following Monday when school commences, (b) for one half of each of the children's school holidays at Easter, Summer, October and Christmas, (c) on alternate Christmas Days and birthdays (d) at such other times as the parties may agree from time to time.
Financial Provision on Divorce
[68.] The Legal Framework
The Family Law (Scotland) Act 1985 provides
Section 8 (1):
"In an action for divorce, either party to the marriage [...] may apply to the court for one or more of the following orders- [...]
(baa) a pension sharing order;
(c) an incidental order within the meaning of section 14(2) of this Act."
Section 8(2):
"Subject to sections 12 to 15 of this Act, where an application has been made under subsection (1) above, the court shall make such order, if any, as is-
(a) justified by the principles set out in section 9 of this Act; and
(b) reasonable having regard to the resources of the parties."
Section 8A:
"If a pension sharing order relates to rights under a pension arrangement, the court may include in the order provision about the apportionment between the parties of any charge under section 41 of the Welfare Reform and Pensions Act 1999 (charges in respect of pension sharing costs) [...]."
Section 9(1)(a):
"the net value of the matrimonial property should be shared fairly between the parties to the marriage [...]."
Section 10(1):
"In applying the principle set out in section 9(1)(a) of this Act, the net value of the matrimonial property [...] shall be taken to be shared fairly [...] when it is shared equally [...]."
Section 10(2):
"The net value of the matrimonial property shall be the value of the property at the relevant date after deduction of any debts incurred by the parties or either of them- (a) before the marriage so far as they relate to the matrimonial property, and (b) during the marriage, which are outstanding at that date [...]."
Section 14(2):
"In this Act, "an incidental order" means one or more of the following orders-
(a) an order for the sale of property; [...]
(c) an order determining any dispute between the parties .....as to their respective property rights by means of a declarator or otherwise;
(k) any ancillary order which is expedient to give effect to the principles set out in section 9 of this Act or to any order made under section 8(2) of this Act."
Section 27(1):
"pension sharing order" is an order which-
(a) provides that one party's-
(i) shareable rights under a specified pension arrangement, or
(ii) shareable state scheme rights,
be subject to pension sharing for the benefit of the other party, and
(b) specifies the percentage value, or the amount, to be transferred;"
"resources" means present and foreseeable resources;"
Matrimonial Property: Assets, debts and scope of Agreement
[69.] The parties have reached agreement (in the joint minutes) about the extent and valuation of the matrimonial assets and liabilities. The principal components of the net matrimonial property are the equity in the matrimonial home and the Pursuer's pension provisions. Neither party can afford to buy the other's share in the matrimonial home. It is on the market at present at a fixed price of £310,000. There is therefore no requirement for an order for sale to be made.
[70.] The parties are agreed that an equal division of the net matrimonial property would be fair and reasonable in the circumstances. The issue between the parties is the way in which that equal division should be effected so as to fairly reflect the parties' needs and resources, having regard to making suitable provision for a new family home for the children. The free proceeds of sale of the house is an asset which is likely to available in the short term, whereas the benefit of a share in the Pursuer's pension provision is an asset which will not be available until a number of years hence. The question is therefore whether the net free proceeds of the sale of the house should be divided equally, or whether the principles of the 1985 Act justify an unequal division of the house proceeds at this stage, with a compensating pension sharing order to the other spouse to take effect in the future.
Pursuer's submissions
[71.] Taking into account the reduced asking price of the house, the net free proceeds of sale are likely to be in the region of £129,535 (after redemption of the mortgage and deduction of the total sale costs). The Pursuer is seeking a larger share of the sale proceeds so that he can repay his debts and apply the balance to the purchase of a suitable property. The total net matrimonial property would be worth around £170,920. One half thereof would be £85,460.
[72.] The Pursuer has over £39,000 of matrimonial debt. He has subsequently accrued further debt in relation to these proceedings.
[73.] The Pursuer is willing to transfer all £11,672.73 of his pension benefits in Standard Life to the Defender. He would be also be willing to transfer a proportion of his pension benefits in the Aberdeen City Council scheme (total value £61,823.13) to the Defender to equalise the assets, if he were to receive a larger share of the sale proceeds from the house.
[74.] The Pursuer has been advised that it would be in his interests to exhaust the Standard Life fund before sharing his current occupational scheme. He intends to remain in employment with the Local Government and would be able to rebuild his entitlement after any pension share is implemented. That does not seem to me to be an unreasonable position to take.
[75.] It would be fair and reasonable for any such costs to be shared equally by the parties.
[76.] The Pursuer intends to buy a three bedroom property in the Kintore area after the matrimonial home has sold, provided that he has sufficient funds to do so. If it sells for the current fixed price of £310,000, there will be in the region of £130,000 of equity to be divided between the parties. In order to purchase a suitable property, he would require to pay a sum of between £165,000 and £250,000. Of the 17 properties shown, only three are priced under £200,000.
[77.] The Pursuer earns around £2,550 net per month. His earnings are likely to remain at this level. He has no savings and no other capital. If he is to purchase a suitable property, he will require to take out a mortgage. He will need to repay all of his debts, which are estimated to be in the region £50,000, before he will be able to secure an affordable mortgage for a reasonable amount. He ought to be able to afford mortgage repayments of £1,100 per month provided that he clears his existing debt The Pursuer will need a deposit of between £40,000 and £50,000 to buy a property in Kintore at a purchase price of £200,000 to £210,000 if he is to keep his mortgage repayments around £1,100 per month.
[78.] The Pursuer's primary position is that he seeks a sum of £100,000 from the sale proceeds in order that he can repay debts of around £50,000 and apply the remainder to the purchase of a new property. Three bedroom rental properties in the Kintore area cost in the region of £900 to £1,500 per month. It would be reasonable in economic terms, and to provide security for the children, for the Pursuer to purchase a property rather than rent.
[79.] In relation to the Defender's position, she has secured a three bedroom rental property for 12 months from 29th June 2012. It is assumed that she has adequate resources to meet the cost of the rental. She stated that she would use a share of the proceeds to "buy a house later on" but gave no evidence of her ability to purchase a property in the future (either in the Kintore area or elsewhere) even if she were to receive an equal share of the proceeds of sale of the house.
[80.] The Defender's income is lower than the Pursuer's. Her basic net monthly income is £1,389.40. She works part time (9am until 2.30pm, Monday to Friday). She confirmed that she would consider working full time if a residence order were to be granted in favour of the Pursuer. She did not suggest that she intends to increase her working hours in the future. The witness Mr S confirmed that full time hours would be available to her if she wished. If she worked full time, her salary would increase.
[81.] There was a total of just under £9,000 of matrimonial debt in the Defender's name as at the relevant date. This would be likely to impact upon her ability to borrow funds or reduce the amount of capital she could apply to the purchase of a new home if she cleared those debts.
[82.] It would be fair and reasonable in all of the circumstances, and having regard to the resources of the parties, for orders to be made reflecting a division on the basis suggested by the Pursuer. It would not be a fair sharing of the net matrimonial property if she were to receive one half of the sale proceeds, given that the Pursuer has a much larger share of the matrimonial debt. At the very least he ought to receive at least £30,492 more of the sale proceeds (£85,013/£54,521) in order to redress the differential in the matrimonial debts.
[83.] As agreement has been reached to sell the house, there is no requirement to make an order for sale. The Pursuer invited me to make an incidental order in terms of Section 14(2)(k) that, after deduction of the debts and burdens affecting the sale price of the matrimonial home (including the sum due to each of the parties in terms of Clause ONE(d)(iv) of the Preliminary Minute of Agreement) and all other expenses pertaining to the sale, the Pursuer shall receive the first £95,000 of the net free proceeds of, and the Defender shall receive the balance thereof. Thereafter, the net matrimonial property could be equalised by way of a pension sharing order or orders.
[84.] These should take effect so as to fully exhaust the Standard Life Pension fund before encroaching on the Aberdeen City Council Pension Fund. The charges levied by the scheme or schemes for implementation should be borne equally between the parties and that it would be appropriate to make such provision in the order or orders in terms of Section 8A of the 1985 Act.
Defender's submissions
[85.] The Defender's suggested approach, referred to in the schedule to her written submissions, was based on equal division at the point of availability. In other words, the Defender seeks equal division of the free proceeds of sale, and pension transfer orders to the extent of 50% of each of the Pursuer's pensions.
[86.] The Defender reminded me that the net value of the matrimonial property should be shared fairly. Both parties require to secure their separate future by using a share of the funds currently tied up in the matrimonial home. The Pursuer apparently cleared the earlier debts in his name through a re-mortgage of the matrimonial home prior to the parties' date of separation. It has not been shown how debts have accrued once more. The Pursuer further proposes that any greater share he receives in terms of the sale proceeds be offset by a pension share in favour of the Defender, which would obviously not be of benefit to her in the immediate future. The Pursuer's proposal would see the Defender receiving a sum towards her retirement, but in the meantime she would be left with minimal capital funds in which to provide a home for her and the children, regardless of the residence order, if any, made by the court. Nor would she have any resources to provide for them financially through school and possibly University. Therefore, to divide the sale proceeds other than equally between the parties is not 'fair' or 'reasonable' as required by section 8 and section 9 of the 1985 Act.
[87.] Both parties require to separately find and fund alternative accommodation for themselves and for the children. They will both require to draw upon their share of the net free proceeds of sale from the matrimonial home to put towards purchasing a new home. It is not practical for the parties to rent accommodation on a long term basis. The Pursuer has asked the court for an unequal division of the sale proceeds in his favour, to let him fully repay the outstanding matrimonial debt held in his sole name, which has been agreed at the relevant date as amounting to £39,391.82. He has also asked the court to allow him sufficient funds for a deposit towards a new property. However, there is no guarantee that the Pursuer would be able to obtain such a mortgage, or that he would use the award of any such funds to clear that debt. There would be nothing to stop the Pursuer using the money for any purpose he wished. The evidence did not necessarily rule out the Pursuer being able to obtain a mortgage if the free proceeds were divided equally. It had not been shown that he had to repay all of his debts to be eligible. The scenario depicted by the Pursuer is an ideal financial division from his perspective only, and does not take proper account of the Defender's needs.
[88.] The Pursuer is in well paid, secure employment. He has received financial assistance from his family following the parties separation. On the other hand, the Defender has worked on a part-time basis to ensure that she was home for the children. She works in the private sector. She has a lower income and less job security than the Pursuer. She would not be in a position to obtain the same level of mortgage borrowing as the Pursuer, and would be dependent on her share of the net free proceeds as a deposit to purchase a property for her and the children for the future. To lessen the amount she receives by ordering an unequal division of the sale proceeds would have a detrimental impact on her ability to fund a permanent home for herself and the children. It is not fair or reasonable having regard to the resources of the parties for the funds to be divided unequally.
Decision
[89.] In determining what would be a fair division of the net matrimonial assets, the parties are agreed that fair sharing would be achieved by equal sharing. Both agents helpfully provided me with a number of schedules showing in tabular form the outcome and effects of division on different possible scenarios.
[90.] The Defender urged me to take the view that this would best be accomplished by an equal division of the assets at the stage when they become available. On that view, the net free proceeds of the sale of the matrimonial home would be divided equally and distributed to the parties in the near future, following the sale. The Pursuer's two pension plans would each be subject to 50-50 pension sharing orders, which would give the parties further capital at some time in the more remote future when the payment provisions of the relevant schemes were met.
[91.] The attraction of the Defender's approach is the arithmetical simplicity and contemporaneous even-handedness of simply dividing the assets as they become available.
[92.] On the other hand, such an approach does not promote what is, in my view, a legitimate objective under the principles of the Act; namely that account should be taken of the parties' housing needs. It is my judgment that the children should live with the Pursuer. He earns £2,550 net per month, and has no savings and no capital (other than the pensions which will mature in the future). In his budgeting plans, he would wish to keep the monthly mortgage payments for any new property at the same level (£1,100). He has provided evidence based on market research that a suitable property in the Kintore area would be one with three bedrooms at a price which is likely to be at least £200,000.
[93.] According to the affidavit of Steven Wilson, Aberdeen Branch Manager of First Mortgage, for the Pursuer to purchase a house at £200,000, and keep his mortgage payments at around £1,100, he would need to put down a deposit of £40,000.
[94.] I take into account that, by comparison, such properties in Kintore would cost around £900 to £1,500 per month to rent. I also take into account that the Defender has moved into rented accommodation which is secure until next Summer, and that she has not sought to put forward any particular detailed or costed proposals for getting herself back onto the property-owning ladder. Accordingly, it seems reasonable in principle that the Pursuer be given some assistance to secure housing with the children in the short term. The only way to facilitate this, while ultimately aiming to bring about equal sharing, is to allow the Pursuer to retain a greater share of the house proceeds and reflect that in a greater pension share to the Defender in due course.
[95.] I was not persuaded that the schedule of division argued for by the purser as his primary position was entirely fair or reasonable. That was represented by Table A in the Pursuer's submissions, and brought out an ideal position so far as the Pursuer is concerned. On that scenario, the capital position after sale of the house and before payment of the listed liabilities would be that the Pursuer would have £92,833 and the Defender would have £36,701. The arithmetical imbalance would be made good to the Defender from pension sharing.
[96.] Having considered all the options, I prefer the Pursuer's submissions, in part, as providing the fairest and most expedient way of embracing the principles of the 1985 Act. The model I have come to favour is based on the Pursuer's fall-back position as outlined in Schedule B to the submissions, although I have not accepted the amount of the capital payment proposed by him. The Pursuer suggests in this scenario that the proceeds of sale of the house be divided equally but the Defender then pay a capital sum of £15,246 to the Pursuer, leaving the Pursuer with £80,013 and the Defender with £49,521 from which to meet their liabilities and make a decision on future housing.
[97.] I agree with the Defender that the Pursuer has prepared the schedules on the most favourable basis from the point of view of his claim. Indeed, the Pursuer may have to accept something less than ideal and tweak his options between a higher mortgage, smaller deposit or being selective in the debts he repays at this stage.
[98.] I am satisfied that it is fair to order that the net proceeds of the house be shared equally, but that the Defender should, from her share, then make a capital payment to the Pursuer. Taking into account all the submissions, in my opinion the Defender should make a capital payment to the Pursuer of £10,000. This will leave both parties with capital after sale of the house. Before repayment of debts, the Pursuer will be left with almost £75,000. The Defender will be left with almost £55,000.
[99.] The resultant imbalance in achieving equality in sharing the net value of the matrimonial assets should be corrected by way of making pension sharing orders in favour of the Defender. The pension sharing orders will provide for the Defender to have a share of the Pursuer's Aberdeen City Council pension (£61,283) to the extent of £18,572, and to have the whole value of his Standard Life Pension (£11,673).
[100.] The effects of my decision can be summarised as follows:
|
Comment |
Pursuer |
Defender |
|
One half estimated net free proceeds of sale of house |
£64,747 |
£64,747 |
|
All other assets, excluding Pursuer's Aberdeen Council pension - but including Standard Life Pension (Pension Sharing Order in favour of Defender for £11,673) |
+ 6,835 |
+ 21,021 |
|
Totals |
= 71,602 |
= 85,788
|
|
Less liabilities |
-39,392 |
-8,900
|
|
|
= 32,210 |
= 76,888 |
|
Capital sum payable by Defender to Pursuer from her share of house proceeds |
+ 10,000 |
- 10,000 |
|
|
= £42,210 |
= £66,888 |
|
Aberdeen Council Pension Fund (£61,823) Pension Sharing Order in favour of Defender for £18,572 |
+ 43,250 |
+ £18,572 |
|
Total Financial settlement by equal sharing |
£ 85,460 |
£ 85,460 |
[101.] I will further direct that the charges levied by the pension schemes for implementation of the pension sharing orders should be borne equally by the parties in terms of section 8A of the 1985 Act.
[102.] The case will be put out for a Hearing on expenses in due course, and I will reserve all question of expenses meantime.