SHERIFFDOM OF GLASGOW AND STRATHKELVIN AT GLASGOW

 

F993/09

JUDGMENT

OF

WENDY SHEEHAN, Sheriff of Glasgow and Strathkelvin

 

in the cause

JOHN MARTIN HALES, residing at Flat 1/3, 437 Duke Street, Glasgow G31 1RY

PURSUER

against

JEAN GRAY TEIRNEY or HALES, residing at 67 Carntyne Place, Glasgow G32 6JW

DEFENDER

                                                                        

 

Act: Anderson

Alt: Herron

 

GLASGOW, 2 February 2012. The Sheriff having resumed consideration of the cause, sustains the pursuer's first plea-in-law; finds that the defender's averments in Answer 5 on page 17 of the Closed Record line 8 from the words "Mr Paton is severely disabled..." to page 17 line 22 the words "her partner's needs" and Answer 5 on page 18 of the Closed Record line 18 from the words "given the nature of the matrimonial property" to the end of Answer 5 are irrelevant; refuses to admit said averments to Probation; assigns 21 February 2012 at 10.00 am as a fresh Diet of Proof on the parties' remaining averments; reserves all questions of expenses in relation to the Diet of Debate on 10 January 2012.

 

 

 

NOTE:

 

This is an action of divorce in which the pursuer seeks divorce on the ground that the marriage has broken down irretrievably as established by the parties' non-cohabitation for a continuous period of two or more years, an order for payment of a capital sum and an order for sale of the matrimonial home at 67 Carntyne Place, Glasgow.

 

The parties were married at Glasgow on 15 September 2000. There are no children of the marriage. The parties separated on 3 May 2004. Following their separation the defender remained resident in the former matrimonial home at 67 Carntyne Place, Glasgow. Divorce proceedings were raised on 17 July 2009.

 

The case comes before me by way of Debate on the pursuer's first preliminary plea. The terms of said plea are focused in the amended Rule 22 Note for the pursuer no. 15 of process. The pursuer's submissions were confined to paragraph 3 of the said Note which is in the following terms:-

 

"The averments introduced by the most recent minute of amendment for the pursuer are irrelevant. In particular, the circumstances of the defender's partner, Peter Paton, are irrelevant in determination of matrimonial property and are not relevant in determining whether there are special circumstances sufficient to justify an unequal division of matrimonial property."

 

The pursuer's preliminary plea is directed to the relevancy of the defender's averments in relation to the use made of the matrimonial home following the parties' separation and the extent to which it is reasonable to expect it to be realised or divided in order to meet the pursuer's claims for financial provision on divorce. These averments concern the defender's partner Peter Paton with whom she formed a relationship following the parties' separation. She now cohabits with him at 67 Carntyne Road, Glasgow.

The said averments are set out in Answer 5 of the Closed Record no. 19 of process on page 17 line 8 from the words "Mr Paton is severely disabled..." to the end of Answer 5 on page 20 of the Closed Record and are as follows:-

 

"Mr Paton is severely disabled following suffering a brain injury. The Defender provides her partner with twenty-four hour care. The property has been modified by Glasgow City Council to accommodate Mr Paton's needs. The sum of approximately ten thousand pounds has been spent on modifications by Glasgow City Council to make the property suitable to accommodate Mr Paton's needs. Approximately four thousand pounds has been spent on the bathroom, two thousand pounds has been spent fitting a stair lift and in addition to this the stairs required to be widened at an additional cost. If the property required to be sold the Defender's partner would require to reside in a care home as the Defender would be unable to find accommodation specially suited to her partner's needs. ...Given the nature of the matrimonial home following the extensive modification due to the Defender's partner's care needs it would be unreasonable to expect the Defender to sell the property under Section 10(6)(d) of the Family Law (Scotland) Act 1995 due to these special circumstances. As previously condescended upon the Defender's partner Pater Paton is severely disabled following suffering from a brain aneurism in January 2009. Mr Paton suffers from total paralysis on the right hand side of his body. Mr Paton is unable to effectively communicate; he has a voice but is unable to construct sentences. Mr Paton relies on very basic facial expressions to communicate such as blinking. Mr Paton requires twenty-four hour care. An Occupational Therapist was appointed to Mr Paton. Following an assessment, extensive modifications were carried out to the matrimonial home. The adaptations included a wet floor shower adaption, a straight stair lift with powered hinge, doors were widened and alterations were made to the rear of the property for wheelchair access. The approximate cost of these works was £10,000. A part fund was obtained through a grant and the Defender and her partner had to meet twenty percent of this sum. Copy letter from Social Work Services North East, Glasgow City Council is produced herewith which clarifies the position with regard to the modification works carried out and the Council's probable view on whether they would modify a second home for Mr Paton and the prospect of him remaining within the community environment. This letter confirms that it is highly unlikely that the grants department would finance a second set of modifications. The defender is not in a financial position to fund the modification of a second property".

 

 

The Pursuer's submissions;

 

The pursuer's agent attacked the relevancy of the foregoing averments on the basis that the circumstances of the defender's partner, Peter Paton, are in her submission, irrelevant to a determination of the matrimonial property and are also not relevant to a determination of whether there are special circumstances sufficient to justify an unequal division of matrimonial property in this case.

 

She referred me to the relevant sections of The Family Law (Scotland) Act 1985, as amended, which provides inter alia:-

 

"8(1) - In an action of divorce either party to the marriage may apply to the court for one or more of the following orders -

(a) an order for the payment of a capital sum to him by the other party to the action

(aa) an order for the transfer of property to him by the other party to the action...

(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.

 

(9)(1) The principles which the court shall apply in deciding what order for financial provision, if any, to make are that -

(a) the net value of the matrimonial property should be shared fairly between the parties to the marriage

 

10(1) In applying the principle set out in section 9(1)(a) of this Act, the net value of the matrimonial property or partnership property shall be taken to be shared fairly between the persons when it is shared equally or in such other proportions as are justified by special circumstances.

(6) In subsection (1) above 'special circumstances' without prejudice to the generality of the words, may include -

(d) the nature of the matrimonial property, the use made of it (including use for business purposes or as a family home) and the extent to which it is reasonable to expect it to be realised or divided or used as security."

 

The pursuer's attack on the defender's averments insofar as this issue is concerned relate to the wording of contained in Section10(6)(d) "the nature of the matrimonial property, the use made of it (including the use for business purposes or as a family home) and the extent to which it is reasonable to expect it to be realised or divided".

 

The pursuer's agent stressed that the reference in the subsection is specifically to the use of the property as a matrimonial home and not as a home for one of the parties and their new partner following separation and divorce. She submitted that this is further reinforced by the fact that the bulk of the reported cases founding on this section relate to a situation where one party seeks a transfer of title of the matrimonial home in order to retain the property for the benefit of the parties' children following divorce.

 

The reference to the use of the matrimonial property for business purposes in the subsection and attendant case law was not submitted to be of assistance to the court in determining this issue as the "special circumstances" founded upon in this case proceed upon an entirely different set of facts and circumstances.

 

The pursuer's agent submitted that the provisions of section 10(6) related to the "special circumstances" of the parties to the marriage and not of a third party, in this case Mr Peter Paton. The pursuer's agent referred me to section 11(6) of the Act in support of that contention. That subsection provides that where the court is considering an award of financial provision to alleviate the situation where a party has been dependent to a substantial degree on the financial support of the other party or at the time of divorce seems likely to suffer serious financial hardship, the court, may, if it thinks fit, take account of any support, financial or otherwise, given by the party who is to make financial provision to any person whom he maintains as a dependent in his household whether or not he owes an obligation of aliment to that person. In her submission, therefore, the Act specifically identifies the relevance of a third party dependent in one of the parties' households but confines consideration of that issue to the resources of the paying party where an award of financial provision under sections 9 (1) (d) or (e) of the Act is to be made, commonly in the form of periodical allowance on divorce. That contrasts starkly with the wording of section 10(6) which refers to the "special circumstances" of the parties themselves or the use of the property as a "family" home.

 

The pursuer submitted that the circumstances of the defender's partner, while compelling, were irrelevant to a determination of a fair division of the matrimonial property between the parties to the marriage and that the Act did not envisage the application of this provision to a set of circumstances concerning a third party which had arisen after the relevant date. She submitted that it should be further borne in mind that in this case divorce proceedings were raised on 17 July 2009. The initial writ intimated clearly to the defender that the pursuer sought payment of a capital sum and an order for the sale of the property at 67 Carntyne Place, Glasgow. It was accepted by the defender that she had instructed the adaptations to the said property in the full knowledge of outstanding claims for financial provision on divorce and the possibility of an order for sale of the property being granted and indeed that being the likely outcome where the parties have no other realisable matrimonial property or resource from which to meet a claim for financial provision on divorce.

 

 

Defender's submissions

 

The defender's agent relied upon the terms of section 10(6) which provides that "special circumstances" may include ...The following subsections set out relevant examples. In her submission the section is broadly framed to allow averments to be introduced in relation to any facts or circumstances which the court may regard as "special circumstances" in determining the extent of financial provision on divorce and in particular whether the court should depart from an equal sharing of matrimonial property in terms of section 9(1)(a) of the Act.

 

The defender's agent further submitted that in this context the provisions of subsection 10(6)(d) should be widely construed and that the averments quoad the adaptation of the property at 67 Carntyne Road to meet the needs of the defender's partner Peter Paton following the parties separation constituted a "special circumstance" which the court could consider in assessing the extent to which it was reasonable to expect the property to be realised.

 

She submitted that the reported cases in relation to Section 10(6)(d) do not particularly assist the court in determining the application of the section in that they each simply provide individual instances or examples of when the section has been applied. She conceded that the main use of this provision has been to allow the matrimonial home to continue to be used as the family home after divorce which is consistent with the specific reference in section 10(6)(d) to "including the use for business purposes or as a family home".

 

The position advanced by the defender's agent was that the court should apply section 10(6)(d) of the Act to find that there are "special circumstances" to justify a departure from equal sharing of the matrimonial property in this case and that this together with a consideration of the parties' resources at the date of proof would justify a refusal of the pursuer's claims for financial provision on divorce in their entirety as the defender has no other resource from which to meet a claim for a capital sum other than the equity in the former matrimonial home. (The defender is also not in a position to secure borrowing against the said property in order to meet any order for a capital sum on divorce granted in terms of section 8(1)(a) of the said Act.)

 

 

Decision

 

While I was not referred to any of the reported cases by agents, I found it helpful to refer to the case of Davidson v Davidson 1994 SLT 506 where it was held that in making a division of matrimonial property that was fair and reasonable it was impossible not to give due weight to the fact that that the matrimonial property had been acquired entirely by the use of inherited funds from the wife for the purposes of carrying on a farming business. In that case the question that divided the parties was in effect, what sum the defender was entitled to by way of a capital sum. It was accepted that the defender was entitled in principle to the payment of such a sum. In the course of his opinion in that case Lord Maclean balanced the fact that the matrimonial home had been acquired entirely by the use of the defender's inherited funds and provided her sole livelihood against the pursuer's obvious material needs and his impoverished state in relation to his wife. In determining the case Lord Maclean balanced these factors and ordered payment of a capital sum to the husband pursuer representing a departure from equal sharing of the matrimonial property of just under a third of the value of the matrimonial home.

 

In my view that case provides a clear instance of the application of Section 10(6) of the Act in balancing the use of the property both as a family home and a business (along with the source of funding of the property) against the needs and resources of the parties at the time of proof. In my opinion it is situations such as those arising in the Davidson case which illustrate the proper application of this provision.

In the whole circumstances of this case, it appears to me that the pursuer's submissions are well founded. While Section 10(6) of the Act allows scope for a broad range of "special circumstances" to be averred, in my view these circumstances are properly confined to the circumstances of the parties to the marriage and their children. In my opinion the intention of parliament in enacting this provision was to allow a measure of discretion to the court to consider the special nature of the matrimonial home as an asset used as a home by the parties, or either of them (and their children) together with the circumstances of the family on the breakdown of the marriage. Looked at in this context that must limit proper consideration of the present use of the former matrimonial home in this case for the benefit of the defender herself. Such consideration should not include the needs of any third party dependent, particularly when the needs of that dependent third party and the special circumstances averred arose following the separation at a time where divorce proceedings had already been raised.

 

Consequently, I sustain the pursuer's first plea-in-law to the extent that I refuse to admit to probation the averments set out in Answer 5 at page 17 of the Closed Record in line 8 from the words "Mr Paton is severely disabled..." to line 22 "her partner's needs" and on page 18 of the Closed Record line 18 from the words "Given the nature of the matrimonial property" to the end of Answer 5 to probation. I allow parties a fresh Diet of Proof on their remaining averments and assign 21 February 2012 at 10.00 am as a Diet of Proof.

 

I will reserve all questions of expenses meantime.