Scottish Sheriff Court Decisions

Act:  Thorley Stevenson

Alt: Stuart & Stuart

EDINBURGH,  5 September 2014

The Sheriff Principal, having resumed consideration of the cause, refuses the appeal;  adheres to the sheriff's interlocutor of 22 January 2014;  remits to the sheriff to proceed as accords;  finds the defender and appellant liable to the pursuer and respondent in the expenses of the appeal and allows an account thereof to be lodged, and once lodged, remits same to the Auditor of Court to tax and to report.

(signed) Mhairi M Stephen

NOTE:/

NOTE:

1. This appeal lies from the sheriff's decision on the preliminary issue between the parties whether the pursuer's application for a capital sum in terms of section 28 of the Family Law (Scotland) Act 2006 ("the 2006 Act") has been commenced timeously.Section 28(8) provides that any application for financial provision "shall be made not later than one year after the day on which the cohabitants cease to cohabit."The sheriff repelled the appellant's preliminary plea that the pursuer's claim for payment of a capital sum was time barred.

    

2. The pursuer is M.B.She had been in a cohabiting relationship with J.B. for 23 years and according to M.B.'s averments they continued to cohabit until sometime in June 2011.If so, these proceedings have been raised timeously and the court, in due course, requires to adjudicate the pursuer's crave for a capital sum having regard to the provisions of section 28 of the Act.The action craving a capital sum of £100,000 was commenced in May 2012 the precise date of raising the proceedings being immaterial.

    

3. The defender and now appellant is J.B. who maintains that the cohabitation commenced in 1986 and that the parties ceased living together in December 2010.

    

4. The proof on 13 January 2014 proceeded on his preliminary plea to the effect that the pursuer's claim was time barred in terms of section 28(8) of the 2006 Act as the action had not been brought within a year.At this point it is worth mentioning section 28 and its provisions.Section 28(8) limits a cohabitant's entitlement to make application for financial orders to the period of one year after the day on which the cohabitants cease to cohabit.The correct application of section 28(8) has been authoritatively decided in Simpson v Downie [2012] SCIH 74. A cohabitant has no independent substantive right to financial provision.The court's novel jurisdiction to entertain cohabitants' financial claims may be exercised only in respect of applications which are made within the one year time limit laid down in section 28 subsection (8).The sheriff takes the correct approach to section 28 in para [10] of his judgment.

    

   The Facts

5. The sheriff found the following to be the facts of the case based on the state of the evidence he heard.

    

6. The parties met in the early part of 1988 and began living together in September of that year.Both had children from previous marriages.The pursuer's three children were aged 6, 12 and 14 in 1988 and then resided with the parties.The appellant had been married twice and had children from these marriages none of whom lived with him.The parties behaved as if they were man and wife.The appellant referred to the pursuer as his wife and did so until 2012.The pursuer did not contradict him.Throughout 2011 until May 2012 the appellant continued to represent to third parties that the pursuer was his wife and that he continued to live at Eskbank Road.That address is the house which he shared with the pursuer between 2007 and early 2011.Both parties had an interest in that property which the pursuer continues to occupy.The parties had previously lived together in a house they purchased jointly at 1 Tait Street, Dalkeith.That property was then rented and the appellant stayed at Tait Street for a while when he moved out of the home at Eskbank Road.The appellant now lives at Duke Street in Dalkeith.

    

7. Whilst living together both parties were in employment and shared domestic bills but retained separate bank accounts.The appellant had assisted in the upbringing of the pursuer's children.They socialised together and went on holiday together.

    

8. The parties' relationship had deteriorated by 2010.They argued.There were periods of purdah when they did not communicate.The house at Eskbank Road was marketed for sale to test the market but it did not sell and was withdrawn from sale.

    

9. In January 2011 the appellant moved to Tait Street. He left belongings at Eskbank Road and retained his key to Eskbank Road.He continued to visit the house at Eskbank Road regularly.He did not have his mail redirected from Eskbank Road until 2012.He stayed overnight at Eskbank Road from time to time.The parties had meals together during the first half of 2011.The parties supported each other in a practical and emotional way and the appellant was in touch with the pursuer's relatives.On occasion the parties socialised together.

    

10. The appellant required to attend hospital at the end of April 2011.The appellant asked the pursuer if she would collect him from hospital which she duly did.He returned home with the pursuer to Eskbank Road and stayed there overnight sharing the same bed.In correspondence and dealings with third parties the appellant continued to refer to the pursuer as his wife.He paid her car insurance premium in 2011.The appellant was also a named driver on the pursuer's insurance certificate for the year from 30 May 2011 to 29 May 2012.

     

11. The appellant stayed overnight at Eskbank Road from time to time during 2011.He visited the house regularly.Friends of the couple confirmed socialising with them at Eskbank Road.As late as November 2011 that year the parties attended counselling together.The pursuer did not change the locks until November 2011.

     

     

    The sheriff's judgment

12. The sheriff states in his note paragraph [3]

    "In relation to credibility and reliability, I found the pursuer to be largely honest but not wholly reliable.  There were occasions when her evidence was not consistent and her memory of events somewhat confused.  I did not form a favourable view of the credibility and reliability of the defender.  It was clear from admissions during cross-examination that he has, in the past, been quite prepared to say things which were clearly untrue.  Even if I accept that some of the erroneous dates and the various CVs produced by him were simply mistaken, his representation as to his time in Hong Kong was clearly untrue.  His explanation for this statement is that 'people embellish their CVs'.  The address he gave in his CV which is 5/3/2 of process was clearly not accurate.  On various occasions in his CVs he referred to the pursuer as his 'wife' which he explained on the basis that it 'looked better'.  His election leaflet (5/3/1) produced for the May 2012 election referred to his 'wife' and how he engaged in gardening.  By that date, on no view of the evidence could the reference to 'wife' any longer refer to the pursuer (if it ever could) and he also accepted that it was decades since he had undertaken any gardening.  It was also pointed out to him in cross-examination that there were occasions in which his evidence before me was not consistent with the averments on record and he accepted that he must have given erroneous instructions in relation thereto.  Accordingly, where there is a conflict between the defender's evidence and other acceptable evidence in the case, I prefer that other evidence."

     

13. There is no dispute as to the period of cohabitation from the beginning of the parties' relationship until the end of 2010.The question for the sheriff to decide related to the subsequent period.The crucial question is whether proceedings had been commenced timeously which requires consideration to be given to the matter of when the parties ceased to cohabit.The statutory definition of cohabitants may be found in section 25 of the Act which the sheriff sets out at paragraph [10].Section 25 (1)(a) refers to a man and a woman who are (or were) living together as if they were husband and wife.Section 5(2) provides that the court in fulfilling its function under sections 26 to 29 must have regard to certain factors for the purpose of deciding whether a person is a cohabitant of another.These factors are:
    1. The length of the period during which they have been living together;
    2. The nature of the relationship and
    3. The nature and extent of any financial arrangements or which subsisted during that period.

       The sheriff observes that he was not referred to any fixed judicial definition of what constitutes "the relationship of husband and wife".  Obviously, that relationship (marriage) is constituted as a matter of law by way of religious and/or civil process and hardly needs defining.

        

14. The sheriff considers that the application of section 25(2)(a) and (c) is straightforward in the present case.At page 15, paragraph [11] the sheriff states:

    "On any view of this matter the parties have been together since 1988, a period of 22 years.  Although they kept separate bank accounts they shared the usual domestic bills.  They shared an interest in heritage which, as I understand it, they have continued to do.  These factors point towards cohabitation."

     

     

    Clearly, the sheriff considers that the duration of the relationship is an important factor in the present case.  The sheriff also considers the nature of the relationship as he must do in terms of section 25(2)(b) much of which I have paraphrased in the rehearsal of the facts.

     

    Grounds of Appeal

15. The note of appeal (no 21 of process) essentially states a single ground of appeal that the sheriff erred in repelling the defender's first plea in law.The ground of appeal is supported by six numbered paragraphs to the effect that as the parties have been living separately since January 2011 and the action was not commenced until May 2012 the pursuer's case ought to be time-barred in terms of section 28(8) of the 2006 Act.The appellant's first plea in law ought to have been sustained.The appellant supports this assertion with the argument firstly, that the sheriff, in support of his decision, failed to make a finding in fact that there was any reason other than separation for the parties to cease living together at Eskbank Road after January 2011.The sheriff's Finding in Fact [21] contradicts his decision to repel the first plea in law.The sheriff finds that the defender moved out of Eskbank Road in or about January 2011 and that he never returned to live permanently there.The last occasion the appellant stayed overnight at Eskbank Road was on 29 April 2011.Secondly, the sheriff misdirected himself in law in finding that the parties continued to be cohabitants when living separate and apart on the basis of a continuing relationship only.Thirdly, in the absence of a finding in fact determining that the parties resumed cohabitation with each other following January 2011 they were, to adopt the dicta of Lord Turnbull in Bain v Bain (2008) CSOH 95 at best "in a state of civilised separation".

     

16. Mr McMillan, for the appellant, lodged detailed submissions in support of the grounds of appeal I do not propose to rehearse these at length.The appellant's motion is to allow the appeal, recall the sheriff's interlocutor, consider the matter de novo, find that the correct date of separation and therefore cessation of cohabitation is January 2011 and thereafter to sustain the first plea in law and dismiss the action with expenses.

     

17. In the course of his submissions Mr McMillan was critical of the sheriff in failing to apply the legal tests of the Divorce (Scotland) Act 1976 ("the 1976 Act") and the Family Law (Scotland) Act 1985 ("the 1985 Act").At section 10, and section 27 respectively these statutes deal with issues of cohabitation.

     

18. Mr McMillan argued that there was an inconsistency between the sheriff's Finding in Fact No 8 to the effect:

    "[8]  After they started living together until they ceased cohabiting the parties behaved as if they were man and wife."

                and the sheriff's finding in fact and law:

    "That as at the date of the commencement of proceedings the parties were cohabitants."

                This is contrary to the evidence and discloses an error in law.  Neither of the parties gave evidence to the effect that they were still in a cohabiting relationship in May 2012.  The pursuer's evidence was to the effect that the relationship had ended by June 2011 notwithstanding that both parties attended counselling in the latter part of 2011.

     

19. Mr McMillan referred me to a number of authorities dealing with the "relevant date" in divorce proceedings.These are Bain v Bain (2008) CSOH 95;Banks v Banks [2005] CSOH 144;Brown v Brown (Lord McCluskeys' opinion) and M v T (unreported decision of Sheriff Bovey).I was also referred to two decisions of Sheriff Morrison QC which deal with the issue of limitation or time-bar and cohabitation in terms of the 2006 Act.These are Wilson v Farrand and Garrad v Inglis.I was also referred to the decision of Sheriff Jarvie in Williamson v Picken & Others which deals with establishment of cohabitation.The sheriff in that case found that cohabitation had not been established and made a distinction between a continuing relationship and cohabitation.I was also referred to various textbooks including Clive on Husband and Wife; and Cohabitation by Malcolm, Kendall & Kellas (2^nd Ed.)

     

20. Mr Thorley for the pursuer and respondent took the opportunity of responding to the submissions made in support of the appeal.He agreed that there was no evidence to support the finding that the parties were still cohabiting as at the date of the writ, however, the sheriff's judgment did not say that or require to say that.The sheriff's function was solely to consider the preliminary plea.

     

21. It is clear from the sheriff's judgment that there was no separation or defining moment.There was no incident which would lead the court to the conclusion that the parties had irrevocably separated.He rejected the appellant's contention that the cohabitation effectively came to an end when he moved out of Eskbank Road at the end of December 2010 or January 2011.The sheriff was clear as to his approach to the evidence and is critical of the appellant's testimony.It is wrong to say that the sheriff did not have regard to the 1976 and 1985 Acts.He was addressed on the tests and came to the view that living under one roof was but one factor to have regard to.

     

22. There was ample evidence for sheriff to find that the parties' relationship did not differ much at all following January 2011. But for the appellant having the luxury of having another house (jointly owned by him and the pursuer) to decamp to the parties would most likely have continued to live under the same roof.Nevertheless, the sheriff was entitled to take the view that cohabitation is a wider concept than living together under the same roof.He was entitled to have regard to the nature and duration of the cohabitation.

     

23. If the authorities referred to by the appellant have any relevance at all they are easily distinguishable.They are not binding.They do not set out a judicial determination of cohabitation.In the case of Williamson the parties had never lived together and the pursuer was endeavouring to establish that there had been cohabitation at all.She failed to do so in an action against the executors dative of her former partner.The other cases deal with the relevant date on divorce for which there is a statutory formula in the 1985 Act.The two cohabitation cases were decided on their facts.

     

24. In conclusion there was a significant volume of evidence available to the sheriff to come to the decision that the parties' cohabitation continued following the appellant's move from Eskbank Road to Tait Street in Dalkeith.The appeal should be refused.

     

    DECISION

25. The 2006 Act introduces, by virtue of sections 26 – 29, new rights to property and financial provision for cohabitants.This action is concerned with section 28 – "Financial provision where cohabitation ends otherwise than by death."The court can only consider an application made under section 28(2) if made within the one year time limit laid down in sub-section 8.The pursuer made such application by way of initial writ lodged in May 2012.As the sheriff makes clear the crucial question he required to determine after proof was whether or not the parties could be said to be cohabitants within the period of the statutory time limit of one year prior to the raising of these proceedings.

     

26. The sheriff heard evidence and therefore had a good deal of material available to him.However, the evidence was quite fluid for the purpose of pinpointing a date when cohabitation ceased.The determination which the sheriff required to make necessarily involves questions of fact and law.The claim which the applicant asks the court to consider depends entirely on the court applying the relevant section of the 2006 Act.The question of whether the parties were "cohabitants" and when they ceased cohabitation will depend on the facts and circumstances deriving from the evidence of their partnership.Of the domestic relationships cohabitation is a de facto union as opposed to marriage or civil partnership which is established by formal legal or religious steps.

     

27. Accordingly, cohabitation and cohabitants are more easily recognised than defined.Section 25 provides the statutory definition of cohabitant as:-

    "(1)   In sections 26 to 29 "cohabitant" means either member of a couple consisting of-

    1. a man and a woman who are (or were) living together as if they were husband and wife; or
    2. two persons of the same sex who are (or were) living together as if they were civil partners."

        

                   Section 25(2) proceeds to complicate that by offering what may be a further process of defining whether a person is cohabitant by stating:-

       "(2)   In determining for the purposes of any of sections 26 to 29 whether a person ("A") is a cohabitant of another person ("B"), the court shall have regard to-

28. The concept of cohabitation is certainly not novel and it appears in both the 1964 and 1985 Acts.Section 10(3)(a) of the 1985 Act defines "the relevant date" (on divorce) as:- "the date on which the parties ceased to cohabit" and section 27(2) provides that:- "the parties to a marriage shall be held to cohabit with one another only when they are in fact living together as husband and wife"".

     

29. The concept is therefore similar but the legal definition is different.The date when the parties ceased to cohabit was a crucial issue in Brown;Banks and Bain (supra).The outcome in these cases depended on the facts.In other words the question of whether and when the parties ceased to cohabit is an objective one for the judge or sheriff.The conclusion which the sheriff comes to on the facts involves the exercise by the sheriff of his judgment.It is a well recognised principle that the appellate court will not interfere with the sheriff's view of the witnesses and the evidence.If there is evidence to support a finding it is difficult to say that the sheriff misused that evidence.The scope for interference by the appellate court is therefore constrained and the question is whether the sheriff's decision fell outwith the band of reasonable decisions open to him.

     

30. I turn to the first point raised by the appellant.It was argued that the sheriff had taken an inconsistent and illogical approach to the evidence. He had reached a view that could not be supported by the evidence given by either party in finding that the parties' cohabitation appears to continue.According to the appellant the sheriff erred in making the finding in fact and law "that as of the date of commencement of proceedings the parties were cohabitants.".There was no evidence upon which to base that finding.

     

31. Although it may appear to be an odd finding standing the evidence narrated and the findings in fact, particularly [8], in my view this point is quite irrelevant to the issue which the sheriff required to consider.All that the sheriff is deciding is the appellant's preliminary plea and whether these proceedings were raised within a year of the parties ceasing to cohabit.That question is answered in the affirmative and the sheriff therefore repels the preliminary plea on limitation.I accept that the manner in which the sheriff has expressed this outcome may be unusual.

     

32. The appellant's argument, both at proof and on appeal, involves focusing and concentrating on the words "living together" in the statutory definition.The appellant's position is that the parties separated in January 2011 thus bringing to an end the "living together as if husband and wife".The absence of a finding that the parties then resumed cohabitation is the main plank of the appellant's argument on appeal.In my view, undue concentration on the words "living together" is both wrong in law and inequitable.Strict application of the requirement that cohabitants live together ignores the realities of life.If one cohabitant in a cohabitating relationship requires to work abroad or is sufficiently ill or infirm that he or she requires to reside in a care home or hospital that does not affect the subsistence of that relationship other than the parties cannot be said to be living together under the same roof.In this case there is no finding that the parties separated in January 2011 instead the relevant finding is [21] in which the sheriff finds:-

     

    "In or about January 2011 the defender moved out of Eskbank Road.  He never returned to live permanently at Eskbank Road.  He removed most but not all of his belongings out of Eskbank Road.  He went to live in Tait Street and continued to do so until moving to Duke Street."

     

     

33. The sheriff's decision makes clear that the parties had joint beneficial interests in a number of heritable properties.No steps were taken at the beginning of 2011 to put their property affairs in order by rationalising, transferring or realising these properties.The more mundane aspects of living were maintained jointly, such as car insurance.

     

34. The pursuer's solicitor in his submissions suggested that the appellant was fortunate in so far as the couple had other heritable property to which he could decamp when the relationship became difficult.Had alternative property not been available and standing what we know of the appellant's conduct following his departure from Eskbank Road, it is more likely than not that the parties would have been living under the same roof but in separate bedrooms during at least part of 2011.Arguably the degree of separation is really no different.I return to the difficulty in determining what constitutes being "husband and wife".The sheriff considers this in paragraph [10] on page 14.By its nature cohabitation is, of course, not the relationship of husband and wife albeit the definition in s.25(1) of the 2006 Act uses the analogy of living together as husband and wife.It is reasonable to say that the factors referred to in Clive – Husband and Wife – 21.075 may have greater or lesser significance depending upon the individuals involved in the relationship;the careers and characters of the parties and the duration of the relationship. None of the factors are conclusive or determinative of the issue.The importance of being affectionate and having sexual relations will vary from case to case.The wellbeing of the parties and the relationship itself may thrive if the parties sleep apart.What is clear is that the sheriff carefully had regard to all of the evidence and all of the factors which had a bearing on the nature of the relationship.For a number of reasons the sheriff was entitled to take the view that he must have regard to the ongoing nature of the relationship (in terms of section 25(2)(b)) during the period following January 2011.He was entitled to do so because the appellant's departure from Eskbank Road in January 2011 was neither final nor complete.He returned regularly to Eskbank Road including overnight;he did not take any steps to reorganise his or the parties' financial affairs or even redirect his mail;he came and went as he wished; the parties ate together and had something of a social life together and with relatives and friends.Despite the difficulties which the parties clearly had in 2010 the evidence disclosed a degree of affection, stability and mutual support.When the appellant is ill it is the pursuer he turns to.When he is discharged from hospital it is the pursuer who takes him home to Eskbank Road.

     

35. Finally, public recognition of the parties as a couple is important.The appellant's presentation to third parties that the pursuer was his wife until a point well into 2012 is clearly a factor which the sheriff took into account as pointing towards the parties continuing to cohabit.In my view, the sheriff was entitled to do so.This is a somewhat unusual and compelling set of circumstances which causes some difficulty for the appellant who now seeks to maintain the opposite.

     

36. In essence, the sheriff had a lot of material available to him.It was for the sheriff to decide in which way the evidence pointed.I can detect no error in his application of the facts to the statutory definition of "cohabitant". The weight which the sheriff gave to the different factors for and against was a matter within his discretion.For the reasons I have given I cannot agree that the sheriff failed to give proper weight to the events in January 2011 when the appellant departed Eskbank Road or that the sheriff placed too much emphasis on the manner in which the appellant continued to represent to third parties that he continued to reside at Eskbank Road and that the pursuer was his wife.The appellant seeks to interpret the term "living together as if man and wife" literally.Physical separation is not conclusive of or determinative of the end of cohabitation.The sheriff requires to consider the whole of the evidence as to the nature of the relationship.In a relationship of considerable length allowance has to be made for difficulties and the working through of these difficulties.The importance of the emotional and supportive qualities that characterise partnership or being husband and wife should not be underestimated.

     

37. I will accordingly, refuse the appeal and award the expenses of the appeal to the pursuer.The limitation provision in section 28(8) of the 2006 Act is fairly restrictive.The imperative for finality makes the need for limitation understandable. It allows parties to draw a line under a relationship that has ended and get on with their lives.Nevertheless, one year is a very short period for parties who have ceased to cohabit and who might wish to try to resume the relationship to do so without that worthwhile objective being impeded by either party feeling under pressure to protect their interests by raising proceedings.It is not open to the court to provide relief or dispensation for lateness.The unfortunate result has been to require many parties in s.28 cases to have the additional expense of preliminary or satellite litigation on the question of limitation.

1. The length of the period during which A and B have been living together (or lived together);
2. The nature of their relationship during that period; and
3. The nature and extent of any financial arrangements subsisting, or which subsisted, during that period.

    

               It appears that the court must have regard to these three factors but the list is not exhaustive.  The court requires to have regard to all facts and circumstances relevant to the parties' relationship in the light of the pleadings and also in terms of the wide ambit of section 25(2)(b) referring, as it does, to the "nature of their relationship".  This would appear to suggest that the court must consider the whole evidence as to the relationship.

    

(signed) Mhairi M Stephen