Scottish Sheriff Court Decisions

F797/12

 

IN THE SHERIFFDOM OF LOTHIAN AND BORDERS AT EDINBURGH

 

 

JUDGMENT

by

SHERIFF NMP MORRISON, QC

in the cause

 

RICHARD EDWARD GARRAD

Pursuer

against

 

ROSEMARIE INGLIS

Defender

__________________

 

 

Act: McAlpine, Advocate, instructed by Gibson Kerr, Solicitors, Edinburgh

Alt: Hayhow, Advocate, instructed by Russel + Aitken LLP, Solicitors, Edinburgh

 

 

EDINBURGH, 19 November 2013

 

The sheriff, having resumed consideration of the cause:-

 

Finds the following facts admitted or proved-

 

1. The pursuer, who is 44, and the defender, who is 56, met in about 2001. They started living together in the defender's home in Edinburgh in about 2003.
2. In April 2010 the pursuer was offered a post in a construction company in Macau. He took up that post in August 2010.
3. The defender was reluctant to go to Macau because she did not like Macau, which the pursuer knew.
4. The defender went to live with the pursuer in Macau in October 2010 to see if she could like it there and to make the relationship work.
5. The defender hated Macau and was lonely there. She spent as little time as she could in Macau, visiting family and friends in Manila, Hong Kong and Singapore.
6. The defender returned to Edinburgh in February 2011. She did not return to live in Macau. The pursuer remained in Macau and still lives there.
7. The pursuer and defender did not live together after February 2011 except that they met in April, May, July, October, November and December 2011.
8. After her return in February 2011 the defender consulted her lawyer about her rights and the pursuer's rights on separation.
9. After her return in February 2011 the defender closed the parties' joint bank account in Edinburgh.
10. On 2 March 2011 the defender consulted her accountant about how to use her assets and told him that her relationship with the pursuer was over.
11. The defender bought a flat in Edinburgh for her daughter. The pursuer was given a half share in that property although he did not contribute financially to its purchase, the other half being in the name of the defender's daughter. The pursuer knew that he would one day have to give up his half share. This was the only heritable property that the pursuer had in his name.
12. In March 2011 the defender asked the pursuer to transfer his half share in the property to her son.
13. The pursuer came to Edinburgh for a long weekend at Easter in April 2011 to sign the disposition on 25 April 2011. The pursuer and defender had sexual relations that weekend.
14. On 6 March 2011 the defender's doctor was told, when the pursuer went to see him with her son, that she and the pursuer had split up.
15. In April 2011 the defender changed her will to remove the pursuer from being a beneficiary.
16. In April 2011 the defender told the pursuer that the relationship was over.
17. Emails exchanged between the pursuer and defender on 2, 4, 9 and 11 April 2011 indicate that the relationship between the pursuer and defender had ended.
18. Between April and December 2011 parties continued to communicate by Skype, telephone and email, generally in affectionate terms. There were also exchanges which were not affectionate. The tenor of those emails confirms that the pursuer and defender had already separated.
19. The defender went to Macau in May 2011 to see the pursuer. They were together for at least six days. They had sexual relations.
20. In May 2011 the defender contacted the bank in Hong Kong about closing the parties' joint bank account there.
21. The pursuer and defender stayed together in Manila in July 2011 when the defender was there for her daughter's birthday and a christening. The pursuer and defender had sexual relations.
22. The pursuer and defender met for lunch one day in October 2011 when the defender was in Hong Kong on her way to Sydney for a wedding.
23. The pursuer and defender stayed in Kowloon for three days in November 2011 when the defender was on her way to Manila.
24. The pursuer stayed with the defender at her home in Edinburgh at Christmas 2011. The pursuer arrived on or about 23 December and left on 3 January 2011.
25. The pursuer and defender ceased to cohabit as husband and wife in April 2011.

 

Finds in fact and law that the action is time-barred and has been raised later than one year after the day on which the cohabitants ceased to cohabit.

 

Therefore, sustains the defender's third plea-in-law and dismisses the action; appoints the cause to a hearing on 9 December 2013 at 12 noon to deal with the question of expenses.

 

 

 

 

NOTE

 

 

The issue

 

[1] The issue in this preliminary proof was whether the pursuer and defender ceased cohabiting as husband and wife in April 2011 as the defender contended or on 3 January 2012 as the pursuer believed. If the former, the pursuer's claim for a capital sum under section 28 of the Family Law (Scotland) Act 2006 was time-barred under section 28(8) of that Act. If the latter, it was not time-barred as the initial writ was lodged with the court on 8 August 2012.

 

[2] The pursuer, who is 44, and the defender, who is 56, met in 2000 or 2001 when they were separating from their respective spouses. They both got divorced. Each has two children from their marriages. They do not have children of their own relationship. The pursuer and defender started living together in the defender's home in about 2003. In April 2010, the pursuer was offered a post with a construction company in Macau. He discussed the idea with the defender. It was agreed that the pursuer was to go out to Macau first and find accommodation; the upper flat of the Edinburgh home would be let out. He went in August 2010 to take up his new post. The defender went out to Macau in October 2010. It was a trial to see if she could like it. She returned to Edinburgh in February 2011 and did not return to Macau to live. The pursuer stayed living in Macau and still lives there.

 

The law

 

[3] It was agreed between the parties that the relevant date under section 28(8) of the 2006 Act was 8 August 2012 being the date on which the application was made to the court. That provision requires, subject to an exception which is not relevant here, that "any application under this section shall be made not later than one year after the day on which the cohabitants cease to cohabit". In a previous case before me, Wilson v Farrand, 21 June 2013, unreported, it had been agreed that the relevant date was the date of service. In neither this case nor that, does it matter; but I was referred, by counsel for the defender, to Secretary of State for Trade and Industry v Josolyne, 1990 SLT (Sh Ct) 48. In that case an application to disqualify a director was lodged within the two year period required under section 7 of the Company Directors Disqualification Act 1986 for the making of the application but served outwith that period. Sheriff Principal Ireland, QC, held that the tempus inspiciendum was the date of the lodging of the application. That interpretation would apply here too.

 

[4] Section 25(1) of the 2006 Act defines "cohabitant" as-

"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".

In determining whether a person is a cohabitant of another, the court is directed by section 25(2) to have regard to (a) the length of the period during which they have been living together, (b) the nature of their relationship during that period and (c) the nature and extent of any financial arrangements during that period.

 

[5] On the meaning of cohabitation, I was referred by counsel for the parties to Clive on Husband and Wife, fourth edition, at paragraph 21.075 where, in relation to divorce, whether a couple live together as man and wife is said to be a question of fact. The comments are in relation to section 13(2) of the Divorce (Scotland) Act 1976 which states that "the parties to a marriage shall be held to cohabit with one another only when they are in fact living together as man and wife". I agree with counsel that the difference in wording between the provisions in the 2006 and 1976 Acts, that is, "husband and wife" and "man and wife" is not material, and that the comments are relevant in a cohabitation case. Various factors are listed in Clive at paragraph 21.075. Counsel for the defender referred me to the passage at paragraph 21.081 where it is indicated that no one factor is conclusive by itself.

 

[6] I was also referred to Banks v Banks, 2005 FLR 116, an action of divorce in which Lord Carloway in the Outer House stated at paragraph [33]-

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

In that case the pursuer had argued that the test of whether the parties had ceased cohabitation was an objective one and that the parties' own views on the matter at any given moment were irrelevant. The defender had argued that the court should look at the various elements before a proposed date, and those after it, to see if there had been any change in the relationship. His Lordship appears to have steered a middle course. Lord Carloway's comments are applicable in this type of case also.

 

[7] I was referred to M v T, 17 November 2011, in which Mr Mungo Bovey, QC, sitting as a part-time sheriff, refers to Banks and lists the factors from Clive. My attention was drawn by counsel for the defender to paragraph 26 of that decision where there is mention of public presentation and parties' attitudes to each other. I was not referred to Wilson v Farrand, above, where I set out my understanding of the law; but it appears to be consistent with the submissions.

 

[8] It seems to me to be clear that the question of whether "a man and a woman who are (or were) living together as if they were husband and wife" for the purposes of section 25(1)(a) of the 2006 Act is a question of objective fact to be determined having regard to the particular circumstances of the particular case. Section 25(2) directs the court to have regard to three specified factors. The provision does not, as is to be found in other statutory lists of factors, state whether the factors are exclusive or inclusive. In my opinion, and as counsel agreed, they are not the only factors that may be considered and are not intended to be the only factors to be considered. If they are, then the words "the nature of their relationship" in paragraph (b) are wide enough to include the following factors.

 

[9] In my opinion, various factors to be considered in answering that question, will include: (1) the length of time during which the parties lived together, (2) the amount and nature of the time the parties spent together, (3) whether they lived under the same roof in the same household, (4) whether they slept together, (5) whether they had sexual intercourse, (6) whether they ate together, (7) whether they had a social life together, (8) whether they supported each other, talked to and were affectionate to each other, (9) outward appearances, (10) their financial arrangements, whether they shared resources, household and child-care tasks, (11) the intentions of each party and whether any of them were communicated to the other party, and (12) physical separation. None of the factors is conclusive on its own.

 

[10] In relation to outward appearances or public presentation, parties may cease to cohabit but present themselves to others as a couple. In this case there was no record for what the parties told others or what the perception of others was about the nature of their relationship. Objections were taken to such evidence on that basis, although not all such evidence was objected to. I have excluded from consideration such evidence which was allowed or not objected to on which it was not possible to cross-examine. There was one incident that Mr Shaun MacLean volunteered in his evidence for the defender, about a meeting between him and the pursuer in April 2011, to which objection had been successfully taken when the pursuer was cross-examined. For that reason I have not relied on that piece of evidence.

 

The submissions

 

[11] Counsel for the pursuer submitted that the fact that, as the pursuer claimed, the pursuer and the defender continued to have sexual relations after April 2011 up to Christmas 2011, was not consistent with the defender's position that they ceased cohabiting in April. While not conclusive, it was a factor to be taken into account in reaching the view that cohabitation had not ceased in April 2011. The pursuer had no reason to lie about a continuing sexual relationship between April and December 2011 because the action was raised in August 2012 and there was no need for him to prove that a sexual relationship continued after August 2011. The evidence showed that, from February 2011, although there was a change in the relationship, it continued: the emails that passed between them up to Christmas 2011 indicated that they did not separate in April. If the relationship had ended in April, it was not credible that the pursuer would come to Edinburgh from Macau to sign the transfer of his half share of the East Fountainbridge property to the defender's son. The meetings of the parties in May, July, October, November and December, on each occasion of which the pursuer claimed that they had sexual relations, pointed to the relationship continuing and not mere friendship. It was only after January 2012 that all communication between them petered out altogether. The pursuer was a credible and reliable witness and, where his evidence and the evidence for the defender differed, I should believe the pursuer. The parties ceased cohabiting on 3 January 2012, which was the last time that the parties saw each other.

 

[12] Counsel for the defender submitted that there were some fourteen events, that occurred which pointed to April 2011 as the time when the parties ceased cohabiting, involving the legal actions that the defender took, the financial advice and actions, the transfer of property, the change to the defender's will, what she told the pursuer and her friends and doctor, the actions and statements of the pursuer and his lack of financial support of the defender. What persisted after April was friendship, an emotional attachment. The defender should be believed when she said that she and the pursuer had sexual relations only in May and July 2011 and not on the other occasions they met in 2011; having sexual relations occasionally was, however, not the same as cohabiting as husband and wife. There was no evidence of a resumption of cohabitation after April 2011; they only met once in Macau (in May) and in July, October and November met elsewhere when the defender was travelling to different places. What happened at Christmas 2011 was the end of what remained of their friendship. The question was not when the parties ceased to love each other or have sexual relations but when they ceased to cohabit. I was invited to find that the defender was a credible and reliable witness.

 

 

Analysis of the evidence

 

[13] There was some indication in the defender's evidence that the relationship declined from the time that the pursuer went to Macau. She hated Macau, and each of them spoke in evidence of the defender never spending more than three weeks in Macau between October 2010 and February 2011. The defender accepted, however, that the relationship had not actually come to an end at that time. The starting point, it seems to me, is to consider first of all what happened between February and April 2011.

 

[14] On 17 February 2011 the defender consulted her lawyer about her rights on separation: her lawyer's affidavit (6/4/2) and file note (6/2/2) indicate that she discussed her partner's rights and her position. In that month, the defender closed the joint bank account she and the pursuer had in Edinburgh.

 

[15] On 2 March the defender took financial advice from her accountant about how to use her assets to generate an income for herself and told him that the relationship with the pursuer was over. The accountant confirms this in his affidavit.

 

[16] In the last week of March the defender asked the pursuer to transfer his half share in a property in East Fountainbridge to the defender's son. The pursuer accepted in evidence that the half share in his name was truly the defender's and that he was to hand it back in due course. He had, he said, been given it to ensure that the defender's daughter, who had the other half, would not be able to sell the property. The defender agreed that she did not want the property to be solely in her daughter's name so that she could not sell it; she also did not want any of it in her own name for tax reasons. The defender had bought the property for her daughter; the pursuer did not contribute financially to the purchase. The pursuer did not accept the defender's position that he transferred his share back, as he was asked to do, because the relationship was over. He did it for love of the defender and she asked him to do it at that time. The pursuer came to Edinburgh for a long weekend at Easter in April 2011 to sign the disposition on 25 April. It was agreed in the pleadings that the pursuer and defender had sexual relations that weekend.

 

[17] It is more than a coincidence, in my opinion, that the defender should seek to divest the pursuer of his only share in any of her property at a time when she was contemplating separation. It was submitted for the pursuer that, if the pursuer knew that the relationship was over, it was not credible that he would come from Macau to Edinburgh in April 2011 to sign over his half share on 25 April 2011, especially as he was aware that he had no property of his own and no security. I think that it is possible that, since he accepted that his half share was not his to keep, he did the honourable thing, as was suggested in evidence, and handed it back when asked to do so. There is some indication in the email exchanges between them that the pursuer may have had an inkling of what had happened to the relationship at that time. In an email of 29 July 2011, in referring to the transfer back of the property, the pursuer wrote to the defender that "it needed to be signed over but I felt as if I was being rejected." In relation to an email exchange at the time, that of 25 March 2011 (5/2/2/13), it was put to the defender in cross-examination that there was an indication of an intimate moment between her and the pursuer and that that was inconsistent with asking for a transfer of property because the relationship was over. The defender said that there was a bit of play between them on Skype; that she had her needs; that there was an inconsistency, but that they were still splitting up at that time.

 

[18] There were other indications in the evidence, to which I shall refer, which support the defender's evidence about the split in April 2011. Whether or not the defender expressly told the pursuer that she wanted the property back because they had split up, it seems to me that she was taking steps to cement that separation.

 

[19] The defender stated that she told the pursuer, and family and friends, that she and the pursuer had split up in April 2011. In an email of 2 April (5/2/2/19) the defender wrote to the pursuer "you no longer seem to be upset about the idea of us no longer being together." In an email of 4 April (5/2/2/19 p.2/4) the pursuer writes "you get rid of me fling me on crap pile all i did was love you but it was never enough ... you rip the last fragment of my megar (sic) existence away." The defender replied on the same date "My friends have nothing to do with my decision. When I tell them I've decided to split up with you I'm sure they will be shocked ... I thought the most sensible thing would be to let you carry on leading the life you've become accustomed to both in Macau and HK and bow out I am defeated and recognizes it painful as it may be ... You see it's the most sensible thing for both of us to be separated for now ... And as I've said if we are really meant for each other we will reunite." The pursuer's explanation was that the defender's email of 2 April was simply her being upset about him not being there (in Edinburgh) to help; and his email of 4 April could have been about anything and not about the relationship being over. In relation to the defender's reply on 4 April, he said that it sounded as if she wanted out of the relationship, but the way he took it was that she was unhappy with him going out (with friends in Macau) and not looking after her; she was aggrieved towards him because he was not there, she wanted him to come back to Edinburgh and he said that if she went out to Macau it would be fine.

 

[20] The pursuer agreed that, in her email of 9 April (5/2/2/22), the defender was saying that there was no point in continuing; but, he said, you had to understand the nature of the relationship. His reply, in an email of 11 April, which contains 15 pages of the word "please", ends with the words "lets give us a try". This was not, he said, a reconciliation attempt; her email was her way of giving him a kick in the ribs, they were having an argument.

 

[21] These emails of 2, 4, 9 and 11 April 2011 seem to me to be about a relationship that has ended.

 

[22] The defender told a friend about the separation in an email of 11 April (6/1/2). She told another friend, Shaun MacLean, and sent him, for him to look at, the email of 4 April that she was going to send to the pursuer. Mr MacLean confirmed in his evidence that he had seen it and that she had told him in the latter part of March that the relationship had come to an end.

 

[23] The defender told her son on 6 April that she and the pursuer had split up. This was the day that her son took her to see her doctor because she was so unwell and not eating. He gave evidence that he told the doctor in his mother's presence; and he confirmed that the doctor's note in the letter to the defender's solicitor (6/2/7) was accurate: "she was emotionally upset after split with partner". The defender told her son that she had told the pursuer.

 

[24] In April 2011 the defender gave instructions to her solicitor to remove the pursuer as a beneficiary in her will. There is an affidavit from a legal secretary (6/4/1) that the defender telephoned on 11 April to make an appointment for that purpose and an attendance note (6/2/1) to that effect. The amended will dated 13 April 2011, with no reference to the pursuer as a beneficiary, is produced (6/1/4) and was confirmed by the defender.

 

[25] The defender was clear that she had split up with the pursuer in April 2011. She did accept that she spent the rest of the year trying to decide whether to reconcile. She was unhappy about the idea of going to Macau, but she thought that she would give it a try. The pursuer accepted in cross-examination that the defender would go for a trial period; she wanted to see how it would all work out. She said that she told the pursuer why she was unhappy about the idea. The defender explained in evidence that her anxiety about going, and a reason why she hated her time in Macau, was because Filipinos were treated badly by the Chinese in Hong Kong and Macau: this was because many Filipinos were domestic servants there. Mr MacLean confirmed this in his evidence. In restaurants, for example, she would be ignored. She had had previous experience of this, as a Filipina, when she lived in Hong Kong for four years. The pursuer said that he was aware that she was not keen on going to Macau, though he said that he was not aware at that time that she did not like Macau; he became aware of that, he said, in April 2011. Mr Michael Coombes, a close friend of the pursuer who had employed him in Macau, in giving evidence for the pursuer, indicated that he was aware that the defender was reluctant to give up life in the United Kingdom. I think that it is very unlikely, in discussions they had about his taking up the post in Macau, that the defender did not tell the pursuer why she was not keen.

 

[26] The defender described Macau as full of casinos, ladies of the night, and was quite seedy. She also said that she was lonely in Macau, because the pursuer worked long hours, and she had nothing to do there. She would go away to see family and friends in Manila, Hong Kong and Singapore. Both the pursuer and defender were agreed that the defender did not spend her whole time in Macau when she lived there between October 2010 and February 2011. It appeared that she was not there for more than three weeks at a time. When she left Macau in February she was not sure if she wanted to go back; also, she had work to do on the separate flat they were creating in her home.

 

[27] In my opinion, there is strong evidence of the pursuer and the defender having separated and having ceased to cohabit by the end of April 2011. I now turn to look at their relationship between April and December 2011.

 

[28] The pursuer placed reliance on the fact that he and the defender met in May, July, October, November and December 2011 and, according to him, had sexual relations on these occasions. Mr Coombes, when he met the defender in November 2011, had the impression that the pursuer and defender were a couple still trying to find a way to keep their relationship going. He accepted that he was not aware of all the details of their relationship. The defender said that they had sexual relations only in May and July; they did not even sleep together on the other occasions except on Christmas Eve 2011. The visit to the pursuer in May in Macau, the defender explained, was because she wondered if she was giving the relationship a chance. They did not reconcile their differences; she could not live in Macau. The parties' pleadings stated that they were together for 12 days. In evidence the pursuer at first said it was a week or so; and the defender said that it was six days, she spending the rest of the time in Hong Kong.

 

[29] There is some support for the defender's position, I think, in the emails which the defender wrote to the pursuer on 11 May 2011 (5/2/2/23) in which she writes "I want to be with you but I am afraid of getting hurt again"; and "I know you love me as I you unfortunately that's not good enough for you." Also, when she was there in May, the defender contacted the bank to see about closing the parties' joint bank account: see her email of 15 August 2011 to the bank in 6/1/3.

 

[30] When they met up in July, October and November, the defender explained that she met the pursuer when she was passing through Hong Kong to visit friends and family. That, it seems to me, was clearly the case.

 

[31] It was accepted that, in July, the pursuer joined the defender for the christening of a friend's baby in Manila. The pursuer had been invited to the party for the birthday on 4 July of the defender's daughter, the defender believing that the pursuer still played a part in her children's lives. The pursuer was unable to go because of work. It is not entirely clear how long they spent together. According to the pursuer, the defender arrived in Manila on 1 July and left for Edinburgh on 19 July. In his evidence the pursuer said that the defender came back to Macau with him. The pursuer produced three photographs from Facebook (5/1/8) showing them together. The first was of a social gathering on 3 July at the time of the christening. The other two photographs, of the two of them, could have been any time between 4 and 17 July (the date they were shared on Facebook). The defender was not asked about the length of time or whether she went back to Macau with the pursuer. The evidence of the pursuer was, therefore, unchallenged.

 

[32] In October the defender was on her way to Sydney to a wedding, to which the pursuer was not invited, and they met in Hong Kong one day for lunch. She denied that they went to Shaun MacLean's flat to have sex as claimed by the pursuer. According to her, Mr MacLean would have been against them using his flat. Mr MacLean was unaware that the pursuer and defender even met in October. Between 18 and 21 November they met in Kowloon when the defender was on her way to Manila. They were together for three days.

 

[33] At Christmas 2011, the pursuer came to Edinburgh. He arrived on or about 23 December and left on 3 January 2012. They did not spend Christmas Day together. The defender admitted that the pursuer slept with her on Christmas Eve but, she said, they did not have sexual relations. The pursuer said that they did. The defender said that the pursuer asked to stay because he had nowhere else to go. She said that his parents did not have room and that his sister had only one bedroom. The pursuer said that he could have stayed with his sister or his parents. The defender stated that she asked the pursuer to stay longer because she wanted him to sort out the drainage problem. The pursuer denied that that was the reason he stayed, but accepted that he did deal with the drainage problem.

 

[34] The defender's explanation for having sexual relations with the pursuer in May and July was that she still loved him, still had feelings for him, she had needs; she wanted them to remain friends.

 

[35] Because they had sexual relations on two occasions, or even if it had been on all five occasions that they met, it does not follow, in my opinion, that that is clear evidence that they were cohabiting as husband and wife. One has to look at all the circumstances. I do not think that it is necessary for me to decide whether the parties had sexual relations on two or five of the occasions that they met in May, July, October, November and December 2011. In relation to the meeting in October, if they had had sexual relations, Mr MacLean seemed to be unaware that they had used his flat. As for the meeting from 18 to 21 November, this was followed by an email exchange in which the defender wrote to the pursuer on 23 November (5/2/2/52) that "some family and friends believe that you want to get back together with me" and made reference to "when I did split up with you". In his reply on 24 November the pursuer complained about being treated "like filth". If they had had sexual relations, those emails do not lend support to the notion that they were cohabiting at that time.

 

[36] The nature and extent of the meetings between the pursuer and defender in May, July, October. November and December 2011 do not, in my opinion, support the pursuer's contention that he and the defender were cohabiting after April 2011.

 

[37] The defender described the breakup as a process. They split up in April 2011; she hoped that they could remain friends; they still loved each other, but she could not live in Macau and he would not return to Edinburgh: he wanted to follow his dream. She had a good life in Edinburgh where she had friends, her children and a beautiful home. What happened at Christmas 2011 was that she realised that there was no going back even as good friends. After February 2012, communication between them ceased. I have to say that this description has the ring of truth about it.

 

[38] The pursuer relied on emails passing between them between April and December 2011 as indicating that the relationship had not ended; it may have been a long distance relationship, and there may have been some change in the relationship, but they were still cohabiting. They still loved each other; they were affectionate towards each other. They communicated regularly by email, telephone and Skype. They told each what they were doing. Emails, between the pursuer and defender, produced in evidence were lodged on behalf of the pursuer. The defender said that she had not kept any of their email exchanges. The defender's explanation for friendly emails was that she wanted to remain friends with the defender in the same way as she remained friends with her ex-husband.

 

[39] In an email of 12 May (5/2/2/24) the pursuer wrote to the defender "You know my dream is to be like we used to be." On 21 June (5/2/2/32) the defender wrote to the pursuer "I have tried living and reliving expat life but I cant (sic) do it ... if and when you are ready to come back then I would be here ... I am doing this to protect myself ... You've chosen your life there now you no longer care for our life here so you should get on with it." The pursuer's comment on this email was that they were together as best they could at that stage, but it was difficult.

 

[40] In an email of 30 July (5/2/2/34 p3/3) the defender wrote "I'm not giving up on us just now. We will continue to try and make it work for as long as you want to and as long as I do too. We will continue to lead separate lives when we're not together." The pursuer considered that this did not mean that they were not in a relationship as if husband and wife; although he was not sure what "separate lives" meant. The defender was not asked about this passage; but it was submitted that, reading on, the context of the passage did not indicate that they were cohabiting.

 

[41] The defender wrote on 5 August (5/2/2/36) "have you never thought that you have discarded me". The pursuer's explanation was that they discussed everything; the emails between them disclosed love, care and affection. On 2 September the pursuer responded to an email from the defender (5/2/2/37) "You must really think I am scum with the tone of your email ... I have just decided I'm sick of trying with you, so all I can do is try to get on without your love." The pursuer explained that he was just trying to get a response; he was not accepting that the relationship was over. The response, on the same date, was, he said, typical: "The sad fact is that we have lost all forms of communications".

 

[42] On 22 September the defender wrote to the pursuer (5/2/2/47) "Would you have come to Sydney with me to the wedding if you're able to?" This was in a paragraph about the defender still wanting to see the pursuer. The pursuer's view was that this was him being invited as a partner not an ex-partner; in fact he could not go because of work. The defender said that she was asking him as a friend. The pursuer's reply the next day began "Do you know how long and how much I have wanted you to take me back." The pursuer said he wrote that because they were going through an icy period. They were not separated, just having a bad time. It seems to me to be a very strange statement to make if they were not separated.

 

[43] When the defender arrived in Hong Kong on her way to Sydney in October she wrote an email on 24 October (5/2/2/50) complaining that the pursuer was not at the airport to meet her. She went on "But here I am instead of lying comfortably with you on our bed I am lying here on Shaun's sofa on my own." The defender explained in evidence that, if she was the pursuer's partner, why was she not on their bed. On this visit the defender did not go to Macau as, according to her, the pursuer did not want her to go there. She was suspicious that the pursuer had another woman living there and mentioned this in an email. The pursuer's explanation was that he did not want to meet her in Macau because she did not like Macau and she did not like the ferry. It is true that the defender did not like Macau or the ferry from Hong Kong, but the pursuer's explanation seems inconsistent with his desire that the defender go out to Macau to live with him and with his belief that they were still a couple. The defender wanted to get some of her clothes from the flat in Macau and it was eventually agreed that the pursuer would hand them over to Mr MacLean in Hong Kong on 23 October, which he did. The pursuer pleaded with the defender meet him on her birthday, 24 October, even for 10 minutes; but she did not. They met for lunch on another day.

 

[44] On 23 November the defender wrote to the pursuer (5/2/2/52) "I have not yet completely made a decision as to my next steps ...Either I live with you in Macau because I don't completely trust you so it can't work leaving you on your own. Or you will have to come and live with me in Edinburgh which would not work either at this stage ... some family and friends believe that you want to get back together because of what I have." The tenor of that email, particularly the last words, implies, I think, that the parties are separated. The pursuer said that the email had to be looked at in context, but agreed that it was not the type of conversation between husband and wife. The pursuer's reply, the next day, was to complain about being treated "like filth". Some cohabiting couples would behave like that, he claimed; but said that "filth" was too strong a word. The defender did not think that they were still together for the pursuer to be talking like that; she used the words "get back together" because they were separated.

 

[45] It seems to me that the emails produced between April and December 2011 do not support the contention that the parties were cohabiting as husband and wife during that period.

 

[46] The defender was suspicious that during this time the pursuer had met another woman, and there are emails which voice this suspicion. She did not trust the pursuer (which the pursuer knew), and there was an issue between them about the pursuer's faithfulness and his going to clubs and partying. He stated in evidence that he was flirtatious. In an email of 24 October (5/2/2/50), the pursuer says "I have been an idiot going out to those stupid night clubs". The pursuer admitted that he met a woman from Thailand in the summer of 2011. He denied that there was a sexual relationship between them. She was a very good friend; they were not in a relationship, it was a platonic relationship. In an email of 22 October (5/2/2/48) the defender refers to the pursuer always saying "there's no way a man and a woman can have just platonic relationship". The pursuer's response was "I used to say that, you cannot just be friends with a girl, but now I know I was wrong." He admitted in evidence that he had concealed the relationship from the defender. That was because there would have been an explosion from her if he had told her about it. He did agree that the existence of the relationship might alter the quality of the relationship he had with the defender. Mr MacLean said that he met the pursuer and his Thai lady friend in June 2011 but he was not able to accept her invitation to join them for dinner because he had another engagement.

 

[47] I have to say that the pursuer was rather coy in his evidence about this relationship with a Thai woman. In chief he said that he went to Thailand for three days in August 2011 to visit temples. In cross-examination the pursuer maintained that he was in Thailand for the architecture and to clear his head. He did not go to see his lady friend. Eventually he said that he did see her for one day when he was there. He went to a Buddhist retreat in January 2012 and may have seen his Thai friend; she did come to Scotland at Christmas 2012. She came with her son, who was born in May 2012; but the pursuer is not the father (and it was not suggested that he was).

 

[48] I think that the pursuer has been disingenuous about his relationship with his Thai friend. It is not surprising that he did not want to tell the defender about it at first and was reluctant in his evidence when he was claiming that he and the defender were still in a relationship at that time. I think that this relationship is another indicator that the pursuer and defender had not been cohabiting as husband and wife since before the summer of 2011.

 

[49] It was the defender's position that the pursuer was not supporting her financially between April and December 2011. They had a joint bank account in Hong Kong which the pursuer used; the defender made no drawings from it before October 2010 or after February 2011. The defender wanted to close the account but there was an overdraft of HK$17,000. The pursuer was not paying it off, the debt had been passed to debt collectors. Eventually Mr MacLean paid it off for the defender and she still owes him money for that debt. The defender said that the pursuer was drawing from the Edinburgh bank account. She was not getting much of a rental income from the divided flat in Edinburgh because the work that the pursuer had done in dividing her house so that part of it could be let out was not satisfactory. As a result of that two tenants had left.

 

[50] The defender complained, in an email of 19 September (5/2/2/46), that the pursuer had paid only £400 into her account instead of £1,400 to pay off an outstanding balance. The pursuer replied that "I said I would pay it of (sic) and I will. I want to help honey I do I always will some how, please you must understand because I'm not sure you do I honestly have nothing".

 

[51] In an email of 29 September (5/2/2/34) the defender wrote worrying about money. The pursuer's reply was "Honey I know I have not helped you with money ... I want to help and give you money but I have this horrible black cloud hanging over me I to (sic) need some security some how, im so scared that I am left with nothing say in 10 years time or later." In his evidence the pursuer explained that he could not support the defender financially because he did not have the money to do so. When he was asked if he was saying to the defender "you look after yourself and I'll look after myself", his reply was that it was because he did not have the money.

 

[52] The pursuer's position appears to me to have been that each of them should look after their own finances. This does not strike me as being that of a couple cohabiting as husband and wife.

 

[53] The pursuer selected 3 January 2012, the day he left Edinburgh to return to Macau, as the date that they ceased to cohabit as husband and wife, because that was the last date that they were together. On that day he did not think that that was the end; he had wanted to work things out. Communication between them became less and less after that until it stopped.

 

 

 

The date on which parties ceased to cohabit as husband and wife

 

[54] I have come to the view that the parties ceased to cohabit as husband and wife by the end of April 2011. I have reached that conclusion for the following reasons. Although the parties were in a relationship for about 10 years, the pursuer's move to Macau in August 2010, with hindsight, heralded a decline in their relationship. The trial period of the defender living in Macau was not a success. She hated it. She returned to Edinburgh. The pursuer and defender never lived together after that; the pursuer lived in Macau and the defender lived in Edinburgh. They met up for short periods on five occasions after April 2011. The pursuer wanted to live his dream in Macau and wanted the defender to live there with him. The defender did not want to live in Macau and wanted the pursuer to come back to Edinburgh. They never resolved that problem. On return to Edinburgh, the defender started the process of separation by consulting her lawyer, consulting her accountant, having the pursuer's half share in family property returned to her family; she changed her will to exclude the pursuer. The defender went back to Macau only once, in May 2011, just to see the pursuer. In July, October and November the pursuer and defender met up because the defender was passing through Hong Kong. They met only for short periods. They still loved each other and they sometimes had sexual relations. The nature and extent of the meetings between April and Christmas 2011 do not support the contention that they were cohabiting as husband and wife. The emails of 2, 4, 9 and 11 April 2011 support the defenders' contention that they separated in April. The emails between April and December confirm that they had already separated. It may be that the defender contemplated reconciliation from time to time during those months, but there was none. Contemplation of reconciliation implies that there has been separation not cohabitation. The pursuer was not supporting the defender financially during these months and suggested that they each look after their own finances. The pursuer formed a friendship with a Thai woman during the summer of 2011.

 

[55] For these reasons also, I found the evidence of the defender more credible and reliable than that of the pursuer.

 

[56] The pursuer's application to the court by initial writ, having been lodged with the court on 8 August 2012 is, therefore, made out of time. The action is dismissed.

 

 

Expenses

 

[57] Counsel were agreed that the issue of expenses should be reserved and dealt with at a subsequent hearing.