UK Social Security and Child Support Commissioners' Decisions

[1997] UKSSCSC CSG_7_1996 (18 April 1997)


 


CSG/7/96


The Office of Social Security and Child Support Commissioners

SOCIAL SECURITY ADMINISTRATION ACT 1992

APPEAL TO THE COMMISSIONER FROM A DECISION OF A SOCIAL SECURITY APPEAL TRIBUNAL UPON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

MR COMMISSIONER D J MAY QC

Tribunal :
Tribunal Case No :

1. My decision is that the decision of the Social Security Appeal Tribunal dated 1 December 1995 is erroneous upon a point of law. I set it aside. Pursuant to my powers under section 23(7)(a)(ii) I make the decision I consider appropriate having regard to the findings in fact I have made below. That decision is to uphold the decision of the adjudication officer issued on 10 April 1995.

2. I directed an oral hearing in this appeal which is by the adjudication officer. The oral hearing was heard on 2 April 1997. The adjudication officer is represented by Mr Liddle, Advocate instructed by the Office to the Solicitor to the Secretary of State for Scotland. The claimant was represented by Miss Fraser of the Scottish Borders Council.

3. In this case the claimant claimed widow's benefit following the death on 16 November 1993 of [G F]. The following decision was made by an adjudication officer and issued to the claimant on 10 April 1995. It is:-

"It has not been established and cannot be presumed that there is a valid marriage between [the claimant] and [G F].

This is because no marriage ceremony took place. Accordingly, widows benefit is not payable on the contributions of [G F] because it has not been proved that she is his widow".

4. The claimant appealed against this decision to a social security appeal tribunal. The decision of the tribunal, which was by a majority, was in the following terms:-

"To overturn the decision of Adjudication Officer dated 10.4.95. Find the appellant has established that an irregular marriage has been constituted between herself and [G F] by cohabitation with habit and repute. [G F's date of death 16.11.93".

5. The findings of the tribunal on questions of fact material to their decision were as follows:-

"1. The appellant claimed Widows Benefit on 26.4.94 following the death of [G F].

2. The appellant had resided with [G F] since 1975. From January 1980, no bar existed to marriage between [the claimant] and the late [G F].

3. [The claimant] had a stillborn child in 1978. If the child had survived she and [G F] would have been married.

4. [The claimant] was known as the partner and wife of the late [G F] within the local community in which they resided, even although for certain legal purposes, for example in the electoral roll, her name was known still as [J].

5. The appellant regards herself as the widow of [G F] following his death, for both social, emotional and practical purposes".

6. The reasons given by the majority of the tribunal for their decision were as follows:-

"The majority of the Tribunal took the view that on balance the appellant had established that she clearly qualified to be regarded as having entered an irregular marriage with the late [G F]. There was no doubt at all to the question of cohabitation with habit, that is to say the parties lived together for 13+ years and had been residing as a married couple on that basis.

With regard to repute and the question of consent, the majority take the view that the appellant and the late [G F] had given appropriate consent to marriage in the context of the stillborn child and the ongoing commitment to the relationship. In addition [the claimant] regarded herself as the widow of the deceased on his death. Accordingly, the majority of the Tribunal take the view that on the balance of probabilities there was sufficient there to infer a degree of repute which was satisfactory for the purposes of the doctrine of marriage by cohabitation of habit and repute and also that consent was duly exchanged".

7. The reasons given by the dissenting member of the tribunal were as follows:-

"The dissenting member took the view that the appellant while having clearly established an ongoing loving caring relationship with the deceased had not shown sufficient to determine actual consent. This is in the context of the appellant still being known for certain official purposes as [the claimant] and the antipathy which had been expressed both by [the claimant] and [G F] for divorce, ie because of their own personal experiences in their early relationships which was the bar from their point of view to their entering into marriage whether regular or irregular. In the event, no practical steps appear to have been taken towards a possible marriage which might have given some further evidence of possible consent being inferred".

8. The adjudication officer has appealed against the decision of the tribunal. It is in these circumstances that the case came before me.

9. Mr Liddle submitted that the tribunal erred in law both in relation to the findings that they made and the reasons given for their decision. It was his submission that findings 4 and 5 could not be supported by the evidence. It was his submission in respect of the giving of reasons that there was conflicting evidence in respect of the reputation of marriage of the claimant and [G F]. It was his contention that this conflict had not been adequately dealt with by the tribunal. It was his submission that the statement by the tribunal that Mr F and the claimant had given appropriate consent to marriage in the context of the stillborn child and the ongoing commitment to the relationship was not supported by finding in fact 3. Indeed he submitted that it is clear from finding 3 that the claimant and Mr F were not married and if the stillborn child had survived this would have been the trigger to lead the parties into marriage when they were both free to do so.

10. Miss Fraser said in reply that there was a sufficiency of evidence before the tribunal to entitle them to reach the conclusion which they did. However that is not the same as there being an adequate factual foundation for the decision which the tribunal reached and also supporting that foundation with adequate reasons. Finding in fact 3 does not lead to the conclusion which is stated in the reasons by the tribunal. I find myself in agreement with Mr Liddle that finding in fact 4 is not supported by the evidence in the case. I will deal with that evidence in due course. Accordingly I am satisfied that the tribunal erred in law and their decision must be set aside.

11. Miss Fraser in her submission submitted that if I held that the tribunal decision erred in law there was insufficient evidence to enable me to make findings. In these circumstances I was asked to remit the case to a freshly constituted tribunal for a rehearing. I do not accept that submission and I consider that there is ample evidence to enable me to determine the case myself.

12. It was an essential pre-requisite of the claimant's claim for widow's benefit that she was married to the late [G F]. No formal ceremony of marriage had ever taken place between the claimant and [G F] during the period from January 1980 until the death of [G F] when they were free to do so. The question in the case is accordingly whether there is an irregular marriage between the claimant and [G F].

13. The only form of irregular marriage which is now available to parties in Scotland since the coming into effect of the Marriage (In Scotland) Act 1939 is described by a Tribunal of Commissioners in paragraph 6 of R(G) 2/82. The Tribunal of Commissioners said:-

"When a man and a woman co-habit together in Scotland at bed and board as husband and wife and behave towards each other as such for a considerable length of time so as to produce a general belief in the society and neighbourhood in which they live and amongst their friends and relatives that they are married they are presumed to be so in fact even although it is impossible to state with any precision a time and place when they exchanged the consent which is essential for marriage. Such co-habitation with habit and repute does not of itself constitute marriage. It raises a presumption that there has been tacit consent to marriage but such a presumption can be rebutted or displaced".

14. Mr Liddle in these circumstances submitted that there were two stages. First there must be the habit and repute which gave rise to the presumption of tacit consent and secondly if the presumption is made there is the question as to whether in the circumstances of the case it is rebutted. The thrust of his submission was that the necessary general repute had not been made out but that even if it had been made out the presumption of tacit consent in the circumstances of this case was rebutted.

15. Mr Liddle took me through the evidence in the case in relation to repute. He referred me to a written statement made by the claimant on 26 April 1994 in which she said:-

"Earlston was a close-knit community when we started living together - we were the first couple to do so who were not looked down upon. My minister says we were more like a married couple than many legally married couples".

Mr Liddle, in relation to that evidence, submitted that the claimant was saying that she and Mr F did not present themselves as married. He said that it is clear from what she said there that the community knew that they were not married but were accepted by the community on that basis. It was his position that the claimant herself had undermined her own case in relation to the establishment of repute.

16. He then went on to draw my attention to a statement made by the claimant's Minister. In that statement the Minister said:-

"I have known '[S J]' for the last 2½ years since I came to this parish. I knew [G F] before he did. I viewed [G] & [S] as a couple. I first came to know [G] when I married his daughter and would say that his daughter regarded them as a couple and viewed [S] as her "mother figure".

Mr Liddle submitted that it is clear from that evidence that the Minister viewed the claimant and Mr F as a couple but not as a married couple.

17. Mr Liddle then referred me to a statement by the claimant's sister. The claimant's sister said in a statement dated 24 October 1994:-

"I regarded my sister, [S J J], as being married to [Mr F]. If introducing them I spoke of them as [S] and [G], as did everyone else in the village. Although people knew they were not married when they started living together no one looked down on them, or gossiped about them. As far as I am aware the reason they never married was that they had a good relationship and didn't see the point, or that their relationship might change if they did marry. They were as like a married couple as any other married couple I know".

Mr Liddle submitted that it was clear from that statement that the claimant's sister knew that the claimant was not married and that this was also the position of the community in which they lived as well.

18. Mr Liddle then went on to refer to a letter from Mr F's son in which he said:-

"In support of the case pursued by [S J], this is to confirm the fact that [S] and my father, the late [G F], lived together as man and wife in the fullest sense since approximately 1976 and has been accepted as his wife or partner by all members of both families. Both my sister and myself have treated [S] as our stepmother during their life together. I personally feel that [S] is very deserving of any benefit due to her as if she were legally married to my father and fully support her pursuance of this case".

Mr Liddle submitted that this evidence was not supportive of repute.

19. According to Miss Fraser there was also evidence in similar terms provided by a daughter to the tribunal. This was not in the papers before me but I am told the contents were similar to that of Mr F's son.

20. I was referred to the oral evidence of repute in the chairman's note of evidence. There was evidence from the claimant. She was noted by the chairman as saying:-

"[The claimant] was asked about the position in the village of Earlston. The villagers thought regarded her and [Mr F] as a married couple".

There was also evidence from a friend Mr Robertson who said:-

"Mr Robertson stated that he had known [the claimant] for some 15 or 16 years. His wife worked together with the appellant. For the first 3 or 4 years there was no doubt at all in their minds that [the claimant] and [Mr F] were known as husband and wife and were presented as such".

"Mr Robertson confirmed that as far as he was aware the deceased and [the claimant] were commonly regarded amongst their friends as a married couple. For example on going on visits they would book into hotels as [Mr and Mrs F]. They had never really envisaged the possibility of problems arising".

21. In response to Mr Liddle's submission Miss Fraser referred to paragraphs 2.0, 2.1 and 2.2 of her written submission to the Commissioner which said that the term "marriage" provided much room for confusion. She said that in its everyday use it connoted a regular formal marriage and that it was in that context that the witnesses referred to marriage. It was her submission that when the claimant's sister in her statement at page 21 referred to the fact that people in the village knew that the claimant and Mr F were not married that was in the context of a regular marriage. It was her position that these references were not fatal to the establishment of an irregular marriage at a later date. It was her position that the evidence of Mr F Junior, the daughter, whose evidence had been produced to the tribunal but which was missing, and Mr Robertson was evidence of repute and that there was a sufficiency of evidence to establish repute. It was accepted that the children of Mr F were well aware of the marital status of the parties. I was referred to what was said by the Lord Ordinary in Shaw -v- Henderson 1982 SLT 211 at 212 where the Lord Ordinary said:-

"It well settled that the repute from which alone the inference can arise must be general, and the difficulty for the pursuer here is that although the repute was general in as much as her neighbours and social companions regarded her as married, she herself admitted and there was evidence to the same effect from some of the relatives that her own relatives knew that she and Henderson were not married and indeed that the couple had made arrangements to be married on 24 February of the year in which Henderson died. Her close friend Sandra Byrn deponed that although a lot of folks thought the two were married the pursuer had confided in her that she was not. I think however that the difficulty arising from that evidence may be more artificial than real. Fairly read, what it amounts to is that the knowledge of which the pursuer and the relatives were speaking was knowledge that the pursuer and Henderson had never gone through any form of marriage, and that interpretation is borne out by her explanation for postponing the ceremony until she knew she was pregnant, viz .... "the thought of the upheaval". That would appear to me to indicate not so much repudiation of the marriage state as dis-taste for the upset of a marriage ceremony, and particularly of having the ceremony at a date long after she had been accepted as a married woman by neighbours and associates. Unlike the situation in England where as I understand it repute is relevant only as evidence that the parties had gone through some valid form of marriage, all that requires to be inferred under Scots law is that the parties tacitly consented to the status of a married couple".

22. Having considered the matter I find myself in broad agreement with Mr Liddle's submissions to me on the question of repute. This is not a case in which the credibility or reliability of witnesses is called into question. Thus it is necessary to look at the evidence as a whole and see what it establishes. There is no doubt in my mind that the evidence in this case does not demonstrate the general and undivided nature of the repute which is required for the presumption of consent to assist along with evidence of cohabitation. The evidence of the perception of the marital status of the parties to the community at large was of a very general nature. I am not convinced Mr Robertson's evidence supports such a general reputation. The evidence of the claimant and her sister in relation to the acceptance of the cohabitation of the claimant and Mr F by the village in the knowledge that they were not married by not looking down on them was inconsistent with general repute. I cannot accept that the evidence that the Minister provides evidence of repute. It is clear from what he said that he viewed the claimant and Mr F as a couple not as a married couple. Indeed he is careful not to use the word marriage in his statement at all. The children of Mr F well knew that there was no marriage between their father and the claimant.

23. I am satisfied that when repute is talked of in relation to marriage the word marriage in that context is not restricted solely to the question as to whether or not the outside world considered that two people are married in the sense of a formal regular marriage only but whether or not the marriage ties with all their rights and responsibilities existed on a regular or irregular basis. I consider that in the passage referred to in Shaw -v- Henderson the Lord Ordinary appears to have considered the question of consent in the context of whether repute was established. For myself I consider that it is only when cohabitation and repute of a general and undivided nature is established that the question of looking at consent arises and even then it only arises in such a case as where there is evidence which goes to rebut the presumption of consent. Thus having failed to establish the general and undivided repute which along with cohabitation raises the presumption of tacit consent the claimant's claim must accordingly fail.

24. However even if I had been with the claimant on the question of repute I consider that in the event her claim would have failed anyway because the presumption of tacit consent is rebutted by the accepted evidence.

25. Mr Liddle drew my attention to the evidence in the case bearing upon consent. He referred first of all to a statement from the claimant dated 21 December 1993 in which she said:-

"We were known to friends as a married couple. Although I kept my own name through principle".

Mr Liddle said that it was not explained what this principle was. He then referred me to a statement dated 26 April 1994 to which I have already referred. In that statement she said:-

"We never got married because we had both been hurt in previous relationships. We felt that things might have changed if we got married. We occasionally discussed getting married but never got round to it. [Mr F's] divorce in 1980 did not make any difference. We had such a good relationship we did not want to rock the boat.

We did not wear wedding rings as such, nor did we celebrate any anniversary.

.................

[Mr F's] family called me [Mrs F], although I never called myself that. I continued to use my married name as it would have been too much trouble to revert to my maiden name, and I did not wish to call myself [F] as a matter of principal. I am a regular church goer, but [Mr F] was not. We were both on the electoral roll.

.................

Although we discussed marriage, we never got as far as setting a date. We never went through any sort of irregular ceremony or exchanged any vows.

................."

26. Mr Liddle then pointed me to the evidence of the claimant's sister Mrs Hardie who said:-

"As far as I am aware the reason they never married was that they had a good relationship and didn't see the point, or that their relationship might change if they did marry".

27. There was also a letter recorded at pages 30 to 30A in which the claimant said:-

"Both [G] and I had previously been married, and in [G's] case twice. We had both been done badly to by our respective spouses, and when we first met each of us was badly bruised by our respective experiences and financially not very well off.

After going out together for a long time we decided to set up home together, obviously marriage was discussed but it never seemed to be really that important as we had our love and respect for each other, and except for a piece of paper it was as any other good marriage.

[G] and I lived as man and wife for twenty years and had the struggle of setting up home from scratch, and all the problems of any couple.

I nursed my husband during his final illness as any wife would do. One cannot share ones life with someone for so long without feeling like a married couple. It's just that we never got around to making it official".

28. Mr Liddle then took me to the Chairman's Note of Evidence:-

"[The claimant] confirmed that she regarded herself as the widow of the deceased and still had very deep feelings for him.

.................

Question was raised regarding the parties contemplating what would happen in the event of death? [The claimant] confirmed that Wills had been made in which the estates of each had been passed to the other. Advice had been tendered at the time by the Solicitor concerned about possible claims with the family in the event of their not marrying. After the death of [Mr F] his family commonly came to [the claimant] and felt close to her in this context.

[The claimant] confirmed that there was an element of a fear of divorce if the parties had been married. She was concerned over the possible change in relationship that might occur because both she and [Mr F] had previously had difficult divorce proceedings in which they had become involved.

[The claimant] also went on to refer to the fact that she had lost a baby in 1978. At that point if the baby had survived they might well have become married".

It was submitted that the fear of divorce, the effect that marriage might have on the relationship, the necessity felt by the parties of making Wills in each other's favour and the possibility that the parties may have married if the stillborn child had lived were all inconsistent with the necessary consent to marriage having been given.

29. Mr Liddle also referred me to Mackenzie -v- Scott 1980 SLT page 9. In that case the Lord Ordinary said:-

"................ (4) more importantly, the pursuer herself really destroyed any suggestion that there had been tacit consent to marriage by her evidence that she and James Scott had discussed getting married and had contemplated getting married in the early Spring of 1976. She stated that she knew that they were not married and that by the latter days of their cohabitation 'she wanted to get married'. As I understood her evidence it was not merely that she and James Scott were to go through a formal ceremony of marriage in the spring of 1976 but that they were to 'get married' ie become married persons. She stated that she did not feel that the law would treat them as married".

"In the light of the pursuer's own evidence and that of the supporting witnesses, I am quite unable to conclude that there was ever tacit consent to marriage. I accept that the pursuer and James Scott cohabited from October 1971 until the latter's death in December 1975, but their cohabitation was as man and woman and not as husband and wife. No doubt they acted most of the time as if they were married, but it is plain that each of them knew that their relationship was something less than marriage, and that far from ever having tacitly consented to marriage they merely had a future intention to marry. I think that it is clear that the pursuer in view of the breakdown of her first marriage, had doubts about entering into a second marriage. She thus began to cohabit with James Scott without any intention of acquiring the legal status of his wife. James Scott wanted to marry the pursuer but it was only shortly before his death when the pursuer had concluded that theirs was a stable relationship, that she agreed that she would become his wife in the spring of the following year. The evidence as a whole causes me to conclude that the pursuer and James Scott never consented to take each other in marriage and to stand in the mutual relation of husband and wife. To the contrary their relationship was merely one of concubinage with the intention that they would become married persons in the future. That being so I am clearly of opinion that the pursuer has failed to establish any right to declarator of marriage".

30. Mr Liddle also submitted that the dissenting reasons given the minority member of the tribunal were correct.

31. In response Miss Fraser referred me to paragraph 10 of R(G)7/56 where it was said by the Commissioner:-

"Reluctance or refusal to undergo a regular ceremony of marriage is not, however inconsistent with the existence of an irregular marriage. It sometimes happens in circumstances like these hat one or other of the parties is reluctant to undergo a regular marriage because the publicity involved would reveal to neighbours who regarded the parties as married that they were not, in truth regularly married. Accordingly, reluctance or refusal to undergo a regular ceremony of marriage is not clearly negative of that consent which may suffice to found on a regular marriage".

She said that in respect of the claimant's statement about future intentions on page 18 that this factor did not exclude consent. She submitted that the position of the claimant and Mr F was different from that of the circumstances in Mackenzie V Scott. She said that the evidence showed their relationship as husband and wife and thus discussion about formalising it would not negate a regular marriage. She accepted as was found by the Commissioner in R(G)4/84 that a deliberate rejection by the parties of the institution of regular marriage indicates a rejection of some of the legal ties, constraints and consequences of marriage according to the law of Scotland. It is sufficient to rebut a presumption that there had been tacit consent to marriage. It was the claimant's position in this case that there was no evidence to support a similar finding of rejection. She also submitted that the parties had discussed the possibility of entering into a formal marriage but did not get round to it, did not infer a rejection of consent. In relation to the claimant's evidence of a fear on the parties' part of divorce - it was submitted that the claimant had also given evidence that she regarded herself as Mr F's common-in-law wife. Thus it could be inferred there was an acceptance of the same responsibilities of a formal marriage.

32. I do not accept the submissions made by Miss Fraser in this regard. I am satisfied that the evidence referred to by Mr Liddle, and which is accepted by me, in respect of the fear of divorce, not wishing to "rock the boat", being prepared to marry if the stillborn child had lived and the making of Wills in favour of each other when taken as a whole demonstrated states of mind of the claimant and Mrs F which were inconsistent with consent to marriage. Indeed such evidence demonstrated a rejection of marriage. The fact that the claimant regarded herself as what is colloquially described as a common-law wife does not assist her. In these circumstances I have accordingly concluded that even if habit and repute had been established the presumption of consent raised thereby would have been rebutted. Thus in any event the claimant's claim fails. I do not think that Mackenzie v Scott is directly in point though it does illustrate a situation in which even if the presumption is raised it can be rebutted. Accordingly I have made the decision I have made in paragraph 1.

33. The appeal succeeds.

Signed

D.J. May QC
Commissioner

18 April 1997