Scottish Sheriff Court Decisions

SHERIFFDOM OF SOUTH STRATHCLYDE DUMFRIES & GALLOWAY AT STRANRAER

 

 

JUDGMENT OF

 

Sheriff DANIEL KELLY QC

 

in the cause

 

EM

Pursuer

 

against

 

AI

Defender

__________

 

 

Act: McAndrew; McAndrew & Co., Stranraer; Alt: Nicol; Nicol, Harvey & Pierce, Stranraer.

 

 

STRANRAER, 20^th February 2012

 

 

The Sheriff, having resumed consideration of the case:

 

FINDS IN FACT:

 

 

(1)          The parties lived together as if they were husband and wife from 2001 until October 2008. They have a child, KI, born on [...] January 2008. They had a committed relationship, socialising and attending family functions together. The pursuer wore a white gold band on the third finger of her left hand. While the ring was a present to the pursuer from her mother, the defender never contested her wearing it on that finger. During this time there were two periods when the pursuer moved out for short spells, one in 2003/2004 when the parties were back together after about a week and a second in 2005 when the pursuer moved out for about six weeks.

 

(2)          In 2001 the pursuer was working as a nanny earning about £250 per week and the defender was employed as a mechanic. In 2002 when the pursuer was made redundant and was unemployed for about three months the benefits to which she was entitled were curtailed due to the parties' cohabitation. In 2003 the pursuer obtained employment as a support worker with [...], with whom she is still employed earning an annual salary of £18,644. In 2003 the defender became self-employed as a partner in [...], taking drawings in his first year to 5^th April 2004 of £2,695. From 6 April 2005 to 31 August 2005 the defender took drawings of £900 and on 1^st October 2005 he left the partnership. In the years to 31^st March 2007, 2008, 2009, 2010 and 2011 the defender earned a net profit of £10,126, £5,359, £8,320, £10,469 and £14,627 respectively.

 

(3)          At first the parties lived in rented accommodation, then in 2003 a house at [...] was acquired at a cost of £50,000, title being taken in the name of the defender. The property was purchased with the assistance of a secured loan of £45,000 from the Clydesdale Bank in the defender's name, the balance of £5,000 being paid by the defender with funds from his mother. On 8^th January 2008 (unbeknown to the pursuer) that loan was discharged and the defender took out a secured loan with the Bank of Scotland for £63,000. The funds received as a result of the increased loan were used in paying off the defender's credit card debts. As at 6^th October 2011 the amount outstanding on that loan was £57,086.26. When the Parties separated in October 2008 the property had a value of £79,000 and on 7^th October 2011 the value of the property was £75,500.

 

(4)          During the period of cohabitation the defender derived economic advantage from contributions made by the pursuer in that during the first years of the defender's business from 2003 to 2006 he had very limited income. The support of the pursuer assisted him in enabling him to start up and develop his business. The pursuer also provided £200 towards the cost of a van for his business and purchased diesel for his van. The defender was able to develop his business with the assistance of the pursuer so that he now has a steady livelihood.

 

(5)          After purchase of the house in which the parties resided they operated an arrangement which was to the economic advantage of the defender since it enabled him to acquire and retain the house which accumulated in value. He enjoyed a capital gain thereby which he otherwise would have been unable to have done. That economic advantage derived to an extent from contributions made by the pursuer. The defender's communal expenditure was generally restricted to such items as house loan payments, buildings insurance payments and contents insurance payments in respect of the house. Most other items of communal expenditure, such as utilities, council tax, television, and shopping were paid for by the pursuer. The house telephone land line, which the pursuer paid for, was in her name. Although the council tax was issued in the name of the defender it was mostly paid by the pursuer. The pursuer arranged to pay arrears of council tax, at times by the money being taken from her salary. The pursuer attended to virtually all of the shopping, housework, laundry and ironing. When shopping she paid for groceries for herself, the defender and K. Under this arrangement the pursuer generally paid at least as much towards communal costs as did the defender and often more.

 

(6)          In 2007 the parties carried out work to the kitchen and living room. The defender paid for new kitchen fittings, which the pursuer's brother and father helped to install. The pursuer supplied flooring in the living room and other materials, such as paint.

 

(7)          As at October 2008 the pursuer had debts of £18,617.37 on three Clydesdale Bank accounts and one GE Capital account. At that time the defender had a credit card debt of £433 and a personal Bank of Scotland loan of £11,323.

 

(8)          The pursuer suffered economic disadvantage in the interests of K in that around the time of K's birth on 31^st January 2008 she took six months' maternity leave at which time she received between £200-£300 less per month than normal. Moreover, on returning to work the pursuer no longer worked overtime since she was looking after K.

 

(9)          The pursuer will bear the brunt of the economic burden of caring for K, who resides with her for most of the time. The defender has residential contact with K every second weekend, with two overnight stays and two weekly holidays, and pays £30 per week towards supporting K. After the parties' separation the pursuer employed a child minder for 37.5 hours per week at £4 per hour until August 2010 since when it has been for 27 hours per week. The child minder was engaged for 18 hours at a cost of £110 per week which reduced to £65 per week and this is expected to continue until August 2012, when K will start at Primary School. K has started nursery at a cost of £2.50 per week. These costs until primary school are likely to be in the region of £17,500. Since November 2008, following the end of the period of cohabitation, the pursuer has received child tax credit which is currently at the rate of £78 per week and she receives £81.20 per month in respect of child benefit.

 

FINDS IN FACT AND LAW:

1.             The parties were cohabitants in terms of section 28(1) of the Family Law (Scotland) Act 2006 from 2001 until October 2008.

THEREFORE:

(a)               upholds Plea-in-Law 1 for the pursuer and Pleas-in-Law 2 and 3 to the extent indicated in (c) and (d) below;

(b)               repels Pleas-in-Law 1, 2, 3 and 4 for the defender and upholds Plea-in-Law 6 to the extent indicated in (c) and (d) below;

(c)                orders the defender to pay the pursuer a capital sum of TEN THOUSAND POUNDS (£10,000) in terms of section 28(2)(a) of the Family Law (Scotland) Act 2006 on 1^st July 2012 with interest at the rate of eight per cent per annum from the date due until payment and decerns;

(d)               orders the defender to pay the pursuer the sum of FIVE THOUSAND POUNDS (£5,000) in respect of the economic burden of caring for KI, who was born on [...] January 2008, after the end of the cohabitation in instalments of £1,000 payable annually, the first instalment being payable as at the date hereof, with interest at the rate of eight per cent per annum on each instalment from the date due until payment, in terms of section 28(2)(b) of the Family Law (Scotland) Act 2006 and decerns; and

(e)                appoints 9^th March 2012 at 10.00 am as a Hearing on expenses.

 

 

 

 

 

 

 

NOTE

 

Disputed issues

(1)               In this action which called before me for Proof at Stranraer Sheriff Court the pursuer seeks orders requiring the defender to pay a capital sum and an amount in respect of the economic burden of caring, after the end their cohabitation, for their child. The defender disputed that the parties had lived together as if they were husband and wife and opposed the orders sought.

 

General circumstances

(2)               The parties lived together, with the exception of some short spells, from 2001 until October 2008. During the period of the relationship the pursuer wore a white gold band on the third finger of her left hand. The parties have a child, KI, born on [...] January 2008. In 2001 the pursuer worked as a nanny earning about £250 per week, the defender as a mechanic. At some point prior to 2003 the pursuer was made redundant and was unemployed for about three months. The benefits to which she was entitled were curtailed due to the parties' cohabitation. Thereafter, the pursuer obtained employment as a support worker with [...], with whom she is still employed earning an annual salary of £18,644. In 2003 the defender became self-employed as a partner in [...], taking drawings in his first year to 5^th April 2004 of £2,695. Accounts to 5^th April 2005 were not produced. From 6^th April 2005 to 31 August 2005 the defender took drawings of £900 and on 1^st October 2005 he left the partnership but accounts were not produced for any sole earnings to 5^th April 2006. In the years to 31^st March 2007, 2008, 2009, 2010 and 2011 the defender earned a net profit of £10,126, £5,359, £8,320, £10,469 and £14,627 respectively.

 

(3)               At first the parties lived in rented accommodation then in 2003 a house was acquired at [...] at a cost of £50,000. Title was taken in the name of the defender. The property was purchased with the assistance of a secured loan from the Clydesdale Bank in the defender's name of £45,000, with the balance of £5,000 being paid by the defender. Unbeknown to the pursuer the loan with the Clydesdale Bank was discharged and on 8^th January 2008 the defender took out a secured loan with the Bank of Scotland for £63,000. The funds received as a result of the increased loan were used to pay off the defender's credit cards debts. As at 6^th October 2011 the amount outstanding was £57,086.26. When the parties separated in October 2008 the property had an open market value of £79,000. By October 2011 the property had an open market value of £75,500. During the period of cohabitation mortgage payments, buildings insurance payments and contents insurance payments were paid by the defender. Most other items of expenditure, such as utilities, council tax, television, telephone and shopping, were paid for by the pursuer. The house land line was in the pursuer's name.

 

(4)               In 2007 the parties carried out work to the kitchen and living room. The defender paid for new kitchen fittings, which the pursuer's brother and father helped to install. The pursuer supplied flooring in the living room and other materials, such as paint.

 

(5)               The defender pays £30 per week towards K. He has residential contact with K every second weekend, with two overnight stays, and for one week in the October and summer holidays.

 

The Witnesses

(6)               The pursuer was careful to correct any inaccuracy which might have emerged from prior documentation and gave her evidence in a forthright manner, which I generally accepted. She gave evidence that the parties' relationship was a committed one. When asked about separations she spoke of two, one in 2003/2004 when she had moved out but they had been back together after about a week, and a second in 2005 when she had moved out for between five to eight weeks. The pursuer said that during the first years of the defender's business he had very limited income and that she had purchased a van for his business at a cost of £200 and diesel for his van. The pursuer said that she was happy for the house to be put into the defender's name and that she had not seen it as "a big deal" for it to be put into joint names. She said that the defender had told her that in the event of his death she and the defender's mother would each receive half of the property and I accepted that she had been told this by the defender.

 

(7)               The pursuer spoke of the bills which she had paid. She had compiled a schedule from her bank accounts detailing those documented ones which she had paid between September 2007 and September 2008, which had been checked by George Ross, the Accountant, and which were not disputed by the defender. These showed recorded outgoings of between £315 and £657 per month which she saw as typical and did not include additional cash expenditure. Although the council tax was issued in the name of the defender the pursuer said that it was paid by her. She was questioned as to arrears which arose but I accept her assertion that she went to the offices and arranged to pay them with the money being taken from her salary. Thus, although the council tax in respect of the property was in the defender's name, I accept that it was the pursuer who mainly paid it, including arrears, during the period of cohabitation.

 

(8)               On 12^th March 2007 the pursuer compiled a list of her income and expenditure with the assistance of the Citizen's Advice Bureau. The address given there is that of the friend with whom she had stayed in 2005 when she had moved out of the house for several weeks and her household is given as being one adult. The pursuer gave the explanation that her profile had simply not been up-dated from a previous involvement, which I accept since there is noted on the Schedule "Moved back to [...]". When she was taken over these figures the pursuer readily acknowledged that some were inaccurate, though she thought that the overall amount reflected her position since some amounts were greater and others were less. Despite the errors the pursuer appeared to be open about this when asked, giving the impression that she was being honest in giving her evidence.

 

(9)               The pursuer said that she took six months' maternity leave at which time she received between £200-£300 less per month than normal. She stated that she worked 37 hours per week but had been unable to work overtime, which was plentifully available, due to having to care for K.

 

(10)           As at October 2008 the pursuer said that she had debts of £18,617.37 on three Clydesdale Bank accounts and one GE Capital account.

 

(11)           The pursuer spoke to care costs for K. After the parties' separation she employed a child minder for 37.5 hours per week at £4 per hour until August 2010 since when it has been for 27 hours per week. K has now started nursery at a cost of £2.50 per week. The child minder was engaged for 18 hours at a cost of £110 per week which reduced to £65 per week and should run through to August 2012 when K will start at Primary School. These costs until primary school were calculated on behalf of the pursuer at £18,285. The pursuer reckoned that she would have after-school care costs at £4 per hour for 15 hours per week for 40 weeks for nine years, costing £2,400 per year. Paying for care during one half of the school holidays would be a further £1,080 per year. This cost for nine years would amount to about £31,320. The pursuer calculated that she spent at least a further £40 per week on K providing clothing, shoes, toiletries, activities and the like which over 15 years would amount to over £30,000. On these figures the cost of child care from the age of 1 until K reached the age of 16 would be about £79,605. If the defender continued to pay towards K at the current rate there would be a contribution by him of £23,400 leaving the pursuer to find the balance of £56,205. Since November 2008, following the end of the period of cohabitation, the pursuer has received child tax credit which is currently at the rate of £78 per week and she receives £81.20 per month in respect of child benefit.

 

(12)           George Ross: An objection was taken to the evidence of George Ross, an Accountant, on the basis that in terms of section 28 of the 2006 Act it was the extent to which the pursuer had suffered economic disadvantage which was relevant and, therefore, future economic disadvantage was not relevant. I propose to admit the evidence, which was allowed to be heard subject to competency and relevancy, on the basis that if an order may be made under section 28(2(b) of the 2006 Act in respect of the economic burden of caring, after the end of the cohabitation, for a child it could be relevant to lead evidence as to what that burden might be. Based on the figures provided by the pursuer, Mr Ross calculated the costs to the pursuer associated with K from the age of 1 until the age of 16 at £56,205. The child care costs for K were calculated as £18,285 up until he starts school, though these fall to be reduced by some three months since K will start school three months earlier than calculated for. After and outside school care for nine years was reckoned at £31,320. £30,000 was attributable to clothing, toiletries, activities and sundries at £2,000 per year for 15 years. This produced a total of £79,605. Were the defender to continue paying £30 per week, that would meet £23,400 of these costs, leaving a balance for the pursuer to meet of £56,205.

 

(13)           DM and MM, the pursuer's brother and mother, gave evidence of the parties being a couple, of the contribution that her brother had made to improvements about the house and of the contribution that her mother makes with child care.

 

(14)           MMcI gave evidence, which I accepted, of the parties living together as a couple which had a permanency to it and of them visiting her in Perth on holiday. She said that the pursuer's mother had bought the pursuer a wedding band which she wore on her left hand as a wedding ring and that the pursuer had told her that that was the correct finger for it. She was aware that the defender paid the loan over the house, that the pursuer paid for the domestic bills and that the pursuer did the washing, ironing and shopping.

 

(15)           KM's husband was formerly in partnership with the defender and thereafter the defender continued working from Mr M's workshop. Mrs. M said that she knew that there was an arrangement whereby the defender paid the loan over the house and the pursuer paid the rest of the bills. She often used to cook for them and said that this was spoken about over dinner, so that her understanding of this came from both of them.

 

(16)           The defender said that at times the parties were a cohabiting couple but he denied that they had been living together as husband and wife. He thought that there had been three separations but was unsure as to when these were. He said that his mother had provided the £5,000 deposit for the house. He spoke of his income and debts and explained that he had not discussed the refinancing over the house with the pursuer since he "did not see the point". He said that he had paid the loan over the house of about £320 per month and the house insurance of £29.60 per month. The defender said that he could not recall telling the pursuer that she would receive one half of the house on his death along with his mother who would receive the other half. He said that he had repaid the pursuer the £200 for the van but could not remember when. He acknowledged that the pursuer had helped him in setting up his business and that she had done the majority of the housework.

 

(17)           When the defender ended his employment in 2003 he said that he had £1,000 in cash in a safe in the workshop which he used to pay the secured loan. He recognised that in the year to 5^th April 2004 his drawings were £2,695 and that if he was paying the secured loan at £3,840 plus the house insurance the pursuer must have been paying the other bills. Accounts were not produced for the next year but for 6^th April 2005 to 31^st August 2005 his drawings were £900, which was his only income. He said that he was paying the secured loan with credit cards and relying upon the pursuer to buy food. Accounts from 1^st September 2005 to 31^st March 2006 were not lodged but to 31^st March 2007 the defender's net profit was £10,126. In the years to 31^st March 2008, 2009, 2010 and 2011 the defender earned a net profit of £5,359, £8,320, £10,469 and £14,627 respectively. The defender was asked about having done work for cash but denied this. The defender has latterly secured a regular source of work with a seller of agricultural tractors which has helped his business. He acknowledged that the funds received as a result of the increased loan had been used to pay off his credit card debts.

 

(18)           The defender generally accepted the calculations of Mr Ross, although he mooted the possibility of K being looked after more either by himself or by his mother while acknowledging that the pursuer and K were no longer living as nearby as before rendering this more difficult. I preferred the evidence of the pursuer to that of the defender where it conflicted, the defender appearing evasive and at times uncomfortable with his evidence.

 

Submissions

(19)           The Solicitor for the pursuer maintained that cohabitation as if the parties were husband and wife had been established. He pointed to the economic advantage that the defender had enjoyed as a result of the indirect contributions of the pursuer in supporting the defender when starting his business, due to her non-financial contribution in house-keeping and due to the indirect contributions of the pursuer's brother and father in house improvements. He also pointed to the economic disadvantage which the pursuer had experienced as a result of being unable to work overtime due to care commitments for K and as a result of losing money during maternity leave. On behalf of the pursuer he sought a capital sum of £12,750 representing one half of the increase in value of the house to date and payment of £28,102 representing one half of the child care costs as calculated by Mr Ross.

 

(20)           The Solicitor for the defender disputed that the parties could be said to have been cohabiting as if they were husband and wife since that applied to stable family units only. Founding on Selkirk v Chisholm 2011 Fam LR 56, she submitted that no award had yet been made solely due to the contribution of one party towards household bills. She disputed that the defender had derived any economic advantage from contributions made by the pursuer. Had there been, it was argued that this was balanced by the economic advantage which she enjoyed of being able to live in the house rent-free. As it was past economic disadvantage which was referred to in section 28(3)(b) of the 2006 Act, which would apply only to the pursuer's maternity leave and lack of overtime, she disputed that any award for future child care could be made. If considering making an award, she urged the use of discretion either to make no award or to make it at less than the level sought.

 

The statutory provisions

(21)           Section 25(1) of the Family Law (Scotland) Act 2006 provides that:

""cohabitant" means either member of a couple consisting of-

(a) a man and a woman who are (or were) living together as if they were husband and wife..."

and section 25(2) adds that in determining whether a person is a cohabitant of another person the court should have regard to-

"(a) the length of the period during which A and B have been living together (or lived together);

(b) the nature of their relationship during that period; and

(c) the nature and extent of any financial arrangements subsisting, or which subsisted, during that period."

 

(22)           Section 28(1) of the Family Law (Scotland) Act 2006 provides that section 28(2) applies where cohabitants cease to cohabit otherwise than by reason of the death of either or both of them. Provided that a claim is timeously made by one cohabitant, in terms of section 28(2)(a) the court may make an order requiring the other cohabitant (the "defender") to pay a capital sum of an amount specified in the order to the applicant. In terms of section 28(2)(b) the court may make an order requiring the other cohabitant (the "defender") to pay such amount as may be specified in the order in respect of any economic burden of caring, after the end of the cohabitation, for a child of whom the cohabitants are the parents. By virtue of section 28(2) the court can make such an order after having regard to the following matters:

(a)          whether (and, if so, to what extent) the defender has derived economic advantage from contributions made by the applicant; and

(b)          whether (and, if so, to what extent) the applicant has suffered economic disadvantage in the interests of-

(i) the defender; or

(ii) any relevant child.

In considering whether to make an order under section 28(2)(a) the Court has regard to the matters mentioned in subsections (5) and (6). The first matter is the extent to which any economic advantage derived by the defender from contributions made by the applicant is offset by any economic disadvantage suffered by the defender in the interests of-

(a) the applicant or

(a) any relevant child.

The second matter is the extent to which any economic disadvantage suffered by the applicant in the interests of-

(a) the defender or

(b) any relevant child

is offset by any economic advantage the applicant has derived from contributions made by the defender. "Contributions" include indirect and non-financial contributions (and, in particular, any such contribution made by looking after any relevant child or any house in which they cohabited) by virtue of section 28(9). "Economic advantage" includes gains in capital, income and earning capacity and "economic disadvantage" is to be construed accordingly: ibid. "Child" means a person under 16 years of age.

 

Cohabitation

(23)           The first issue to be determined is whether the parties were cohabiting as if they were husband and wife. The pursuer was understandably upset on hearing the defender dispute this and the defender seemed embarrassed at refuting it. The solicitor for the defender confirmed that they were to be regarded as living in a family unit at this time, while maintaining that this was not on the basis as if they were husband and wife. As it was overwhelmingly clear from the evidence that they were so cohabiting as if they were husband and wife I do not propose to deal with this at length. Suffice to say that the parties lived together as a couple for seven years, bought, furnished and improved a house together, had a child, had intrinsically linked financial arrangements, socialised and went on holiday together and, in a myriad of other ways, lived a co-dependent life. It is in keeping with that view of the relationship that the pursuer wore a white gold band on the third finger of her left hand and that the defender never contested that. While the defender founded on some periods of separation, as these were for relatively short periods and the parties kept in touch and saw each other throughout, they do not materially affect the overall position.

 

The claim for a capital sum

(24)           As the house at [...] has increased in value over the period of cohabitation the defender has enjoyed a capital gain in respect of the house. That gain has derived directly from his contributions in paying the instalments on the loan and the house insurance. The key question is whether (and, if so, to what extent) the defender has also derived this economic advantage from contributions made by the pursuer. In my view this economic advantage which the defender enjoyed during the cohabitation has derived to an extent from contributions made by the pursuer. The defender was only able to afford to make his contributions in respect of the house by reason of the pursuer meeting most of the remaining expenditure. The pursuer met some of the costs of the property themselves, such as the council tax and the telephone bill, and contributed towards decorating and up-grading it, such as in buying flooring and paint and having her family fit the kitchen. In my view there has in this respect been a clear and quantifiable economic imbalance which has resulted from the cohabitation (cf Gow v Grant 2011 SC 618, 620 para. 4). The award is not being sought in respect of the general payment of bills, where payment for one thing by one party would be offset by benefits gained by the other party paying for other things, as provided for in section 28(6) of the 2006 Act, but is sought in respect of this increase in value of the property.

 

(25)           Having concluded that the defender has derived an economic advantage in respect of the increase in value of his house from contributions made by the pursuer, the extent of that advantage falls to be considered: section 28(3)(a) of the 2006 Act. In my view the distinguishing feature is the parties' arrangement whereby one paid the immediate housing costs while the other paid virtually all of the other costs, resulting in one party being able to retain an asset rising in value while the other paid the remaining living costs which had no long-term financial return. Having regard to the parity which the parties' financial arrangement sought to achieve, in my estimation the resulting economic imbalance would best be corrected by an award reflecting an equal sharing of the gain in value of the house to the extent to which to which the house was financed by the secured loan. This reflects the position that for much of the period of cohabitation the defender earned less than or little more than the amount of the house loan payments and its insurance and that without the pursuer meeting the living costs he would not have been in a position to meet the monthly instalments on the secured loan.

 

(26)           I do not propose to proceed upon the basis of the equity in the property but of its increase in value. The defender chose to extend his loan by way of refinancing the property and the pursuer was unaware of this. It is the defender who has had the benefit of the extended loan, the funds received as a result of the increased loan being used for the defender's own purposes in paying off credit card debts. The pursuer was left with her debts while the defender was able to reduce and consolidate his debts. At the end of the period of cohabitation she was left with significantly greater debt than him, hers being £18,617,37 and his apart from the secured loan being £11,756.

 

(27)           The house was purchased during the cohabitation at a price of £50,000 of which the defender met 10% of the cost of the property and the remaining balance was borrowed. While the house was valued at the end of the period of cohabitation at £79,000 the Solicitor for the pursuer proposed to proceed upon the current value, namely £75,500. 90% of this increase in value of £25,500 is £22,950. I, therefore attribute an economic advantage of a capital gain to the defender of £22,950 derived in part from contributions made by the pursuer. In order to provide compensation to the pursuer for this imbalance an award of about one half would be appropriate, subject to making some allowance for offsetting to take some account of the pursuer living in the house, to title being in the defender's name and for incidental costs were the equity to be realised, I propose, therefore, to make an order requiring the defender to pay the pursuer a capital sum of £10,000.

 

The claim in respect of the economic burden of child care

(28)           In my view the pursuer has established that an order in respect of the economic burden of child care after the end of the cohabitation ought to be made. Regard might first be had in terms of section 28(2) and 28(3)(b)(ii) to whether the pursuer has suffered economic disadvantage in the interests of K. The pursuer has established that she did suffer economic disadvantage in her reduced earnings during maternity leave and her inability to work overtime since she was looking after K. In gauging the extent of the economic disadvantage suffered, since K was born towards the end of the period of cohabitation, this might generally be described as modest. Regard might also be had to the extent to which the defender has derived economic advantage from contributions made by the pursuer in terms of section 28(2) and 28(3)(a). Such economic advantage derived by the defender that has already been balanced by the order in respect of the house ought not to be double-counted but there were certain remaining elements over and above that already accounted for. The pursuer helped the defender with his business and he was able to develop it with her assistance so that he now has an increased and growing earning capacity, which might be construed as an economic advantage in terms of section 28(9) of the 2006 Act. Moreover, there were non-financial aspects in the pursuer taking care of the house and doing virtually all of the housework while the parties were together. It was submitted that there was some economic advantage derived by the defender thereby. As "contributions" include indirect and non-financial contributions (and, in particular, any such contribution made by looking after any house in which the parties cohabited) by virtue of section 28(9), regard can be had to this contribution although it is difficult to attribute a cost to it.

 

(29)           While in my view an order is appropriate in respect of the economic burden of the child care after the end of the cohabitation, having regard to the limited extent of this economic advantage and disadvantage the amount sought by the pursuer has not been substantiated. Moreover, although the child care costs likely to be borne by the pursuer for K from the age of 1 until he is aged 16 have been estimated by the pursuer at about £56,000 at current rates, section 28 of the 2006 Act is not designed to tackle the full extent of these care costs for K after the cohabitation. Other provisions relate to the defender's responsibilities towards the maintenance of K and the pursuer receives child tax credit and child benefit to assist towards this. Having regard to the relevant factors which have been identified it would be appropriate for the order to provide in this context for a modest contribution by the defender towards that burden and in my view that would reasonably be put at £5,000.

 

Instalments

(30)           The orders can be payable on a specified date or in instalments, in terms of section 28(7) of the 2006 Act. It would be reasonable to give the defender a period to explore his options to raise a capital sum, either in terms of further refinancing or otherwise. Four months, ought, therefore, to be allowed before the capital sum is payable. In view of the resources of the defender the amount payable in respect of the economic burden of child care could usefully be spread over several years and shall therefore be payable in five annual instalments of £1,000.

 

Expenses

(31)           The Solicitor for the defender requested that expenses be reserved and a Hearing to deal with them will, therefore, require to be fixed.

 

___________________