OUTER HOUSE, COURT OF SESSION [2008] CSOH 122
F190/07	OPINION OF LADY CLARK OF CALTON in the cause COLIN JAMES CARRICK Pursuer; against INESSA ZAUROVNA KHAMZHUEVA or CARRICK Defender: ________________

Pursuer: Wise Q.C.; HBJ Gateley Wareing

Defender: Party

26 August 2008

Procedure and Pleadings

[1] This case came before me for proof in respect of an action of divorce which was raised by the pursuer in August 2006. The proof was heard over four days. The pursuer was represented by senior counsel. The defender, at various stages prior to proof, had been advised by a number of different solicitors and on occasion counsel was instructed. The defender sought and was granted a discharge of the diet of proof following submissions about her difficulties in obtaining representations. At the proof the defender was a party litigant.

[2] The pursuer sought decree of divorce against the defender on alternative grounds. He sought divorce in conclusion one, in respect that the parties' marriage had broken down irretrievably as established by the parties' non-cohabitation for a period of more than one year and the defender's consent to decree of divorce being granted. Alternatively in conclusion two, the defender sought divorce, in respect that the parties' marriage had broken down irretrievably as established by the unreasonable behaviour of the defender. The second conclusion was supported by detailed averments in Article 3 of condescendence relating to the defender's alleged behaviour. Some of these averments related to alleged problems created by the defender in relation to the business relationships of the pursuer. The defender contested these averments in Answer 3 and made averments criticizing the pursuer's alleged behaviour. Before evidence commenced it became apparent, from discussion with senior counsel for the pursuer and the defender at the Bar, that there was no dispute that both parties wished to be divorced. There appeared to be a dispute about the relevant date of non cohabitation but whatever the date, it was agreed that the parties had not cohabited as husband and wife for more than the statutory one year period. Senior counsel for the pursuer stated that the second conclusion for the pursuer seeking divorce based on averments about the alleged unreasonable behaviour of the defender was not the pursuer's preferred option. She pointed out there was no cross action by the defender seeking divorce on the basis of any allegations in respect of the pursuer's behaviour. In Article 4 of condescendence, which dealt with financial matters, the pursuer set out detailed averments about the relevant date and his financial circumstances. The defender's averments in Answer 4 were very brief and stated:

"Admitted that the defender is receiving aliment at the rate of £2000 per month. The defender seeks financial provision in terms of the Family Law (Scotland) Act 1985. The pursuer is called upon to disclose all of his assets in order that a fair division of the assets can be achieved."

[3] The general issue about the scope of the proof having been raised and discussed at the Bar, the defender was granted an adjournment to further consider her position. Thereafter the defender stated that she consented to divorce on the basis of one year non cohabitation. The appropriate consent form was signed by her. The proof thereafter proceeded in respect of averments in relation to conclusion one for the pursuer and the financial conclusion for the defender which was the subject of averments in Article 4 and Answer 4. The relevant date of non cohabitation was averred in the pleadings in Article 3 of condescendence. The pursuer averred that the parties had not been together in the same dwelling since 3 December 2005. That date, senior counsel for the pursuer contended was the relevant date for the purposes of considering financial provision in terms of the Family Law (Scotland) Act 1985 (hereinafter referred to as "the 1985 Act"). There was no alternative date averred in the pleadings on behalf of the defender. Although the pursuer set out detailed averments about financial circumstances in Article 4 of condescendence, there was no general denial of these averments in the defender's pleadings. There were no positive alternative averments put forward by the defender in relation to financial matters.

[4] Senior counsel explained that her understanding of the defender's position was that the defender, despite the absence of pleadings, contended that the relevant date was September 2006. She did not object to exploration of that issue and information had been made available on behalf of the pursuer about assets of the pursuer and valuations at December 2005, and September 2006. In addition similar information had been provided in relation to the date of June 2006. Senior counsel said June 2006 might be another date to consider as the relevant date.

[5] In the course of evidence, senior counsel objected on a number of occasions to lines of evidence relating to the pursuer's alleged behaviour about which the defender sought to cross-examine or lead evidence. She submitted that there were no pleadings in relation to financial matters to support such lines of evidence and also that they were not relevant to the issues to be determined. Where the defender wished to insist on pursuing these lines, I sustained the objections as I considered the reasons for the objections were well founded. The pleadings plainly limited the scope and relevancy of the issues left in dispute. In relation to the relevant date, there was evidence about the parties' perceptions and communications and feelings in relation to the state of the marriage which was led without any objection.

The evidence of the pursuer
[6] The pursuer aged 49 stated that he was a company director of various companies concerned with construction and property development and had been so involved all his working life.

[7] He formally identified marriage certificate 6/1 of process and accepted that the parties married at Maybole, Ayrshire on 28 January 2005. He explained that he had met the defender in Moscow. They arranged to meet there following internet contact between the parties. At that time he understood she was employed to facilitate business introductions in the Moscow area. She lived in poor circumstances in Moscow. Their relationship developed. With the pursuer's assistance, the defender moved to the UK and a visa was obtained for her as the parties wished to marry. Prior to the marriage they lived for a short period at the pursuer's house at 25 Castle Road, Dunure, Ayr. The pursuer accepted that this accommodation was very poor and that the defender did not wish to live in it. She made that plain to him. As a result, prior to the marriage, arrangements were made by the pursuer to obtain a new residential caravan which was parked on the land at that address. After the marriage the parties lived together in said residential caravan and never lived in the house. The pursuer explained in general terms that after the marriage both parties experienced difficulties. He said that prior to the defender returning to Russia for a visit on 3 December 2005, there were difficulties in their relationship. He made reference to 6/30/3 of process. This was an e-mail sent to him by the defender on 2 December 2005 referring to the defender's perception that she was making the pursuer unhappy and other problems. The pursuer stated that he had not lived with the defender as husband and wife since 3 December 2005. There had been no physical contact between the parties after December 2005. After that date the pursuer accepted that the parties remained in frequent contact, particularly e-mail contact, which was often affectionate. He became concerned about difficulties. This included what he described as visa difficulties and his uncertainty about the status of the parties' marriage. The defender had been previously married. The pursuer said he did not know whether she had been divorced as there was no documentation. The defender said that the tone of the parties' correspondence changed in about June 2006. Since December 2005, the pursuer said he had increasing concerns about the future of the relationship. By June 2006 he concluded that the relationship had no future. He did not at that date express that view to the defender. At that date the e-mail correspondence was illustrated by 6/30/4 of process. The defender said she did not want to contact the pursuer from that date. The pursuer thought that the defender was organising her life and work in Moscow. He was content with that. As a result of an e-mail request from the pursuer dated 8 September 2006, 7/2/115 of process, the pursuer sent the defender approximately £10,000 to purchase a car for her work. To his surprise, he then discovered on 18 September 2006 that the defender had returned to the UK. He said she was hostile and demanding money. There was no suggestion of a resumption of marital relations and marital relations were not resumed. There was no reconciliation.

[8] After the defender returned to the UK, the pursuer said she demanded payment of bills and asked for cash on a sporadic basis. The pursuer said he generally gave her what she asked. In order to formalise matters, the parties entered into an agreement in about May 2007. The defender asked for £2000 per month as interim aliment. The pursuer understood that the defender was not working and agreed to pay her the amount for which she asked. He discovered a short time before the proof that she was in paid employment. He referred to 6/40 of process which set out the defender's income from the British Red Cross from May 2007. From December 2007 the defender received approximately £1000 per month.

[9] The pursuer was examined about his financial circumstances in relation to matrimonial property. The pursuer explained that, prior to his marriage, he was the owner of the heritable property at 25 Castle Road, Dunure, Ayr which was purchased in 1985. Reference was made to the Disposition in his favour, 6/6 of process. He also owned a flat in Glasgow purchased in 2003. He explained that the matrimonial home was the caravan. This was owned by a company and not by him. The caravan was later sold and the proceeds were transferred to the company.

[10] During the marriage, the pursuer purchased a new build property described in 19 of process, paragraph 3. Under reference to 6/9, 6/10 and 6/11 of process he stated that the purchase price of £172,800 was borrowed from Halifax Plc. Estate agents whom he consulted were sceptical about whether the property would sell for £180,000. Even if it did, the fees involved would wipe out any capital gain.

[11] Under reference to 19 of process paragraph 1, the pursuer described the acquisition of shares by him in Construction & Property Recruitment Limited for a sum of £40,000. This purchase was funded by a loan from another company. That loan is shown in the letter from the company secretary of HBS Construction Limited, in 6/3 of process. He explained that there had been a growth in value of the shareholding as the company did relatively well. His share in the increase in value is illustrated in 19 of process in paragraph 1 and in the summary section thereof. The pursuer explained that because of the structure of the company and the debts owed by the company, it would not necessarily be easy to realise the value of the shares.

[12] The pursuer also acquired two shares in Construction & Property Services Limited which represent 100% of the issued share holding. He explained that the company had purchased two building plots under one title in about October 2005 at 27/29 Castle Road Drive. That property is adjacent to the heritable property which he had owned since 1985. Subsequently there had been difficulties with access to 27/29 Castle Road from the main road because of title problems. The purchase price had been borrowed but the value of the asset had declined mainly because of the access problems. He made reference to 6/7 to 6/8 of process. He estimated the value of the shares because of the access problems and the outstanding debt at nil.

[13] During the marriage the pursuer said he held Standard Life policies summarised in 19 of process, paragraph 4. He explained that these life policies had been acquired prior to the marriage and were still held in joint names with his previous wife, who has an interest in them. A calculation of his half share interest at various possible relevant dates are to be found in 19 of process.

[14] In relation to pension, the pursuer said that he had a pre-existing pension in HVS Executive Limited employees' pension plan. He explained that paragraph 5 of 19 of process shows the increase in value between the date of marriage and various possible relevant dates.

[15] The pursuer explained that he held money in his sole name in only one account and there was also a joint account in name of himself and the defender. The sums held at various possible relevant dates in the pursuer's account are demonstrated by 6/24 of process and in the joint bank account at 6/25 of process. In relation to the joint bank account, the pursuer stated that during the marriage the defender's earnings as a company secretary were paid directly into the joint account. She operated a Morgan Stanley credit card which was a second card on the pursuer's credit account and also an Egg credit card. The pursuer said he did not take money from the joint account at all. He occasionally paid money into the joint account. The defender's credit card debts on her Egg credit card were repaid through the joint account. He repaid Morgan Stanley directly. These credit cards were stopped by him some time after the defender went to Russia.

[16] The pursuer also received 777 shares in Standard Life plc issued on 26 July 2006. Reference was made to 6/12 and 6/13 of process and the value at various relevant dates is set out in 19 of process.

[17] The pursuer explained that he did have substantial assets acquired before the marriage in the form of his interest in Henry Boot (Scotland) Construction Limited. He acquired an ownership interest in 2003. The shares he acquired in 2003 are still owned by him.

[18] He did not acquire any motor vehicles during the marriage but had a Ferrari acquired in April 2003. Reference was made to 6/26 to 6/29 of process.

[19] He also made reference to Schedule 6/31 of process. This was a schedule of payments which had been made to the defender by the pursuer since December 2005. At the date of the proof the pursuer said he had paid to the defender approximately £60,000. He explained that even the payments which were made to the defender as salary were indirectly at his expense as these payments had been deducted from his earnings. He accepted that this had given the parties some small tax advantage.

[20] In summary, the pursuer said that the defender brought no financial assets to the marriage. He had not made any economic gain as a result of her assistance. He had provided substantial funding to her not only during the period they lived together but thereafter. He was still paying aliment to her. He did not dispute that he was in a position to pay whatever sum the Court considered appropriate in relation to capital or aliment payments. His preferred solution was a clean break.

[21] In cross-examination, the pursuer accepted that the parties had met for the first time in Russia by prior arrangement and that the defender had left Russia to come to the UK as a result of their relationship. It became clear from the line of cross-examination that the defender contended that the date of non-cohabitation was 22 September 2006. The pursuer accepted that in December 2005, the principal reason that the defender left the UK to return to Russia was to attend a funeral and that she had a return ticket. There had been communication between the parties that the pursuer would join the defender in Russia. The pursuer accepted that there was affectionate correspondence by e-mail. He stated that in the defender's absence, he was able to explore what he thought were irregularities about her previous divorce and her immigration status. He accepted that there was ongoing discussion about this between the parties reflected in the e-mails. He also accepted that the parties had discussed remarriage if there were continuing divorce difficulties which were unresolved. The pursuer accepted that for a period after December 2005 it was possible that the parties might continue in marriage. He said he was trying to keep the defender happy until he could find a solution. He became increasingly concerned about cultural and other differences between the parties. He became concerned about what he thought were threats by the defender to damage his business.

[22] The pursuer accepted that he was not particularly concerned about the date of non-cohabitation provided parties were able to resolve financial matters. He would have accepted September 2006 to facilitate a settlement. He said that he had made every effort to resolve matters but the defender rejected proposed settlements. She had a variety of lawyers. Reference was made to 7/34/7 and 7/2/135 of process.

[23] Under reference to 7/38 to 7/40 of process, the pursuer did not accept that he had ownership interests which he had not declared. He explained that the fact his name was shown in company documents as a director did not mean that he was an owner of the business. In relation to 7/58, the pursuer explained the inter-company transactions and that draft accounts existed which in due course when finalised would be filed. The pursuer explained that he changed company names because he had no option as his original use of the Henry Boot name was under licence. He also explained that it was long standing practice to use shell companies for individual projects. He explained that 7/62 had been prepared to assist the pursuer and her advisers. This gave full details of the companies in which the pursuer was a director and/or shareholder and details of the various companies. The pursuer accepted that the arrangements were fairly complex but not unusual in his type of business. He stated that the pursuer and his advisers had offered a meeting to the pursuer and her advisers to give more detailed information. That had been offered on more than one occasion but because of the defender's attitude had never taken place. The pursuer said that the list of companies in 7/62 provided all the information necessary for any search to be made in Company House. The pursuer rejected the suggestion that his business arrangements were made in some way to defeat the financial claims of the defender. He stated that all the arrangements he made were for sound business reasons.

[24] The defender put to the pursuer Scotsman article dated 30 August 2007, 7/41/2 of process which made reference to a Scottish contract and Henry Boot making a pre-tax profit of £21.9 million pounds in the six month period to June 2007. The pursuer stated that he had already explained on another occasion to the defender that this article referred to Henry Boot plc. Henry Boot plc, he stated, is an entirely separate company. The pursuer said he had nothing to do with Henry Boot plc. Henry Boot plc was a major company in which he said he had no financial interest.

[25] Reference was made to documents in 7/55/7/56 of process. These referred to the Directors report and various financial statements for the years ended April 2005 and April 2006 of Henry Boot Scotland Limited, a company in which the pursuer admitted he was a director. The pursuer denied that he had any secret accounts. He said he did not have shares in 20 companies as the defender suggested. He stated that he and his advisers had done everything possible to explain to the defender the nature and value of matrimonial assets. The shareholdings which he acquired prior to the date of the marriage were not disclosed. All matrimonial assets had been declared.

[26] The pursuer was questioned by the defender about the history of the purchase of the land at 27/29 Castle Road Drive. He accepted that the offer had been in the name of his mother. He explained that he did not wish to alert the owner that a developer was interested in the land. The land was purchased in the name of Construction & Property Services Limited as the pursuer did not have the money himself to buy the property. The company was able to obtain a loan and that was all shown in the accounts which are drawn up by professional accountants. He accepted that there had been discussions between the pursuer and the defender about the possibilities of planning consent and eventually perhaps building a house for the parties on the land. The pursuer said there were many potential possibilities but the land was still owned by the company and undeveloped. There was also an unexpected access problem which was unresolved. He accepted that there was no independent valuation. He said that he had discussed the matter informally with a valuer who had valued it at approximately £99,000. He considered that the site was worth more and the book value shown in the accounts was £124,000. The pursuer said whatever its value, it was an asset owned by a company using borrowed money.

[27] The defender wished to put to the pursuer 7/59 of process. This was a "without prejudice" offer. I sustained an objection by senior counsel for the pursuer. In my opinion this was privileged communications in the course of negotiations.

[28] In relation to the joint account, the pursuer accepted that the defender had expressed a wish for financial independence. He considered that she had financial independence as she had been free to spend money on two credit cards. As he had given up part of his salary, she also received a salary into the joint account. After the defender went to Russia, the pursuer accepted that he withdrew money from the joint account. He explained that all the money from the joint account was received by the defender directly or indirectly. For example, for a period some of her credit card debts continued to be paid through the joint account. In relation to the defender's request for a car, the pursuer accepted that there had been some early discussions about a car but pointed out that the reason he sent the defender £10,000 was because she had asked him by e-mail for a car.

[29] In relation to aliment, the pursuer accepted that he had signed an agreement about this. Prior to that, he said he provided support to the defender when the defender identified her needs. At various dates she identified various expenses she incurred. She presented a figure of £2,000 seeking interim aliment and that figure was agreed. The pursuer accepted that he had paid aliment of £2,000 since May 2007. He did not know that the defender was in work and earning when he paid her that aliment. The pursuer said that the defender had many ways to earn a living. He accepted that it would take the defender some years to become a GP and said that was a matter for her. He accepted that there had been no need for her to work during the marriage but said that did not mean that she was now entitled to a high standard of living. He had agreed to aliment because of her erratic demands, some of which he interpreted as threats. He thought it was right to try to regularise the position pre-divorce. The amount which she asked for was simply conceded. The pursuer had never disputed that the defender was entitled to some financial settlement. He accepted that he had brought the defender to the UK, that she had lived with him and he had supported her. He did not accept that he had not made a full disclosure of matrimonial property. He explained that the profits of the companies did not all come to him. He said he had explained all the post marriage company arrangements.

The evidence of the pursuer's mother
[30] Mrs Elizabeth Carrick, the mother of the pursuer, said that she saw the pursuer and the defender prior to the marriage on many occasions. She thought then that the defender was a pleasant, nice girl. After the marriage she saw less of the parties. Towards Christmas 2005, the defender went back to Russia. Mrs Carrick thought that she had gone back to spend time with her family. She phoned the defender's mobile phone in January/February 2006 but it was not answered. The pursuer said to her that he did not know when the defender was coming back. The defender came back in the autumn of 2006 with no advance warning. Mrs Carrick got a phone call from the defender. She thought that the defender was in Russia. She was angry with the defender for the distress that she had caused. Mrs Carrick "more or less told her to get lost". In the middle of 2006 the pursuer said to her that the marriage was over. She thought there was no prospect of a reconciliation. In cross-examination, Mrs Carrick accepted that she was unaware of any arrangement for the pursuer to join the defender in Russia. Mrs Carrick accepted that she had not seen the e-mail correspondence between the parties and that she did not know the reasons why the defender did not come back. She accepted that she did not know about the details of the parties' relationship.

[31] The defender put to Mrs Carrick 7/71 of process. I sustained an objection to questioning about this document which was not put to the pursuer and in my opinion was irrelevant to the financial issues on record.

Evidence of the defender
[32] The defender spoke to 7/63 of process. She said that by December 2005 the pursuer and defender were a family. She had been brought into a horrible house prior to the marriage. She considered that house was rancid and unsanitary. After the marriage the parties lived in a caravan. The defender was critical of the caravan accommodation. She said that she was promised by the pursuer that they would live in a new house. This did not happen. She left in December 2005 for Moscow. This was a visit only. There were 150 e-mails between the parties. Shortly after she arrived in Moscow she received 7/2/8 of process when the pursuer first raised an alleged problem about her visa. There was an objection to the line of evidence if the defender was attempting to suggest that the pursuer prevented the defender from returning to the UK on a false basis. I sustained this objection. There were no pleadings to support it in relation to the financial conclusions. The defender said the pursuer repeatedly referred to problems about her visa and her divorce from a previous marriage. It was all very upsetting. She was stuck in Russia. The defender thought these were real problems and she was very distressed. She thought there were problems about her returning to the UK and that was the reason she did not return. The defender explained that some time in the early summer of 2006 she made enquiries and discovered that there was nothing to prevent her returning to the UK. She accepted that she had asked the pursuer for money for a car. She then used the money for other purposes including her unannounced return to the UK. She consulted solicitors. She went to the caravan but there was no one there. She phoned Mrs Carrick and got no assistance. She went to the police. The pursuer arranged a hotel for her. She was critical of that. The parties met for the first time since December 2005 on 22 September 2006. She wanted explanations from the pursuer. She felt that he had deceived her and that he had raised issues about the validity of the marriage and problems with her visa which were untrue. She accepted that since 3 December 2005 she had never lived with the pursuer or had sexual relations with him. She said she had been shocked and distressed by the pursuer's behaviour and lack of explanations. She said that the marriage was impossible after 22 September 2006. She had lost all trust in him. She felt he had been deceiving her since shortly after she left in December 2005. She considered that 22 September 2006 was the date that they separated.

[33] In relation to financial matters she criticised the pursuer's evidence and stated that the draft accounts which he had described had not been produced. She said that there was no professional valuation of the apartment in Stoke-on-Trent referred to in paragraph 3 of 19 of process. She said that the pursuer had not given a full picture of the companies. She stated that she had never had access to the pursuer's bank account during the marriage. She had no clear picture of his company appointments or business structures. In relation to the joint bank account, she said that she had no access to that account. She was only able to see the account on the internet. She said that her salary and expenses were completely controlled by the pursuer and that she was only able to use credit cards. She said that she had no clear picture about Construction and Property Marketing Company. She did not have any information about pensions or the pursuer's shares in Standard Life. She said that she had some information about a flat in Edinburgh as she and the pursuer gave someone the keys to the flat. She also cleaned a flat in Glasgow on one occasion when the pursuer gave her £200. She gave no further information about these properties or the relevance to her claim. In relation to the property at 27/29 Castle Road, the defender stated that there were no official documents confirming the valuation and no clear picture of the lands purchased. She said that she had never had precise information about the assets of the pursuer during the marriage. There had been no independent valuations of these assets produced by the pursuer. Any valuations had been prepared by the pursuer's employees and accountants. These were not independent. The defender said that she did not have funds to provide independent valuations and was not able to afford to instruct forensic accountants to investigate the pursuer's assets. She thought that was essential. The defender said she had done research in Companies House and the Land Registry and had obtained a lot of useful information but as she had been unable to fund forensic accountants, she could not be certain of the pursuer's assets. She claimed that the pursuer had assets which she did not know about. She complained that she had not seen his tax accounts or bank statements and that the productions lodged did not show a full picture of his assets.

[34] The defender made a motion for recovery of documents. She was critical of solicitors, who when they had been acting for her, had refused to seek recovery of certain documents. This motion was opposed. I refused to entertain a verbal motion for recovery of documents, as the motion was far too late as it was in the course of the proof when evidence had been led.

[35] In relation to aliment the defender accepted that she received £2,000 per month after the agreement. She explained that she lived in a rented flat. She had to pay solicitors and she had a loan which she had obtained to pay solicitors. She said her employment contract with British Red Cross would expire in the summer of 2008. She wished to study to become a GP. She did not have an alternative job. She considered that she needed £2,000 per month to enable her to have accommodation and pay her living expenses and basic needs.

[36] The defender said, under reference to the press article 7/41/2 of process, that she considered that the pursuer may be involved in this company and there is no clear picture of his profits.

[37] In cross examination the defender accepted that she had signed the form of consent, 18 of process. She explained that she had qualified as a medical practitioner in Russia during the years 1987/1995 and graduated from the State University in the Republic of Kabardino-Balkarai. Her date of birth is 27.12.69. She practiced for a short time as a medical practitioner and worked in a clinic until 1998. The economic circumstances were poor and the job was very badly paid. As a result she sought other employment in Russia. She accepted that by 2004 she had not been involved in medical work for 6 years because she had obtained better paid work in Russia. She was living in rented accommodation. She always had jobs with a satisfactory salary in Russian terms. She said she had a good standard of living in Russia. She lived in rented accommodation which she accepted was very small. She also used the office of her company in part for residential purposes.

[38] Before the marriage she lived for a few months in the house at 25 Castle Road. She regarded that as unacceptable accommodation and below her standard of living in Russia. After the marriage she and the pursuer lived in a residential caravan on land at 25 Castle Road. She was critical of the caravan accommodation which had limited space. She said it did not provide comfortable and acceptable accommodation. She knew that the defender had financial means but she had never known the extent of his income and capital. She accepted that she had no significant assets.

[39] She did not accept that the marriage had serious problems before she left Scotland in December 2005. She accepted that there were problems and that the pursuer seemed distant even before she left for Russia. She accepted that she did not think it made sense to be in a marriage that was unhappy. She had noticed a change in mood of the purser and that was why she raised her concerns with him. He denied at the time that the problem was with the marriage. She did not accept there were any serious problems before 2005. She said that the tone of the e-mails between December 2005 and June 2006 was affectionate. In June 2006 she sent three e-mails to sever contact. That was because she thought at the time she had caused the problems over the visa. She accepted she had sent e-mail 6/30/4, 5 and 7. In an e-mail in early September 2006, 7/2/115 of process, she accepted that she told the pursuer that she had a good job offer as a director's assistant. She accepted that she had no intention to buy a car and that it was a ruse to get the money and get back to the UK. She knew by this time that the pursuer did not want her back. She said that the job offer was true although she had lied about the intention to buy a car. She said that her responses had to be seen in the context that up to about August she had believed that the visa problems had been real. She said that she then discovered that her visa was not suspended and she took the view that the pursuer had by false pretences kept her out of the UK. She lost all trust in him.

[40] In relation to the capital assets of the pursuer, she did not accept that the evidence of the pursuer was true. She accepted that offers had been made to her to meet with the pursuer with her advisers. She said that her solicitor had rejected this as the pursuer's accountants Lizars were not independent accountants. None of the advisers were independent of the pursuer. They had all worked for the pursuer and the pursuer had business relationships with the accountants.

[41] In relation to her own earnings, the defender accepted that since December 2007 she had a full time contract of 37 hours per week providing social care and assistance to disabled people. She assisted students with disabilities who were working at college. She said her contract was due to expire at the end of June 2008. She enjoyed the work. She had a good relationship with the students and colleagues. She thought that a reference would be provided. She accepted that there was nothing preventing her from returning to work in Russia but she wanted to stay in the UK. She did not want to work as a doctor in Russia as it was still badly paid. She thought that she could have full financial independence if she retrained as a GP in the UK, but that would take some years and would involve substantial costs. She required support during that period from the pursuer.

[42] The defender accepted that until December 2005 the pursuer had supported her and that thereafter her living expenses had been met by the pursuer. She said she had a difficult 7 or 8 months until regular aliment was agreed. She accepted that she had received £10,000 which the pursuer had sent her to purchase a car and had used the money for other things. She did not accept that some £60,000 had been paid to her in respect of her debts. She accepted that payments had been made but said she was not in a position to confirm the total.

[43] The defender's evidence was that she did not accept the evidence given by the pursuer about his financial circumstances. She would not agree with the pursuer under any circumstances. She said she feared that the pursuer was hiding property from her. She did not consider that he had made a full disclosure of the assets. The pursuer had lost her trust as a result of what she considered to be false information and representations made to her by the pursuer about her visa and in relation to her divorce from a previous marriage.

Submissions on behalf of the pursuer
[44] In relation to the divorce, senior counsel for the pursuer sought divorce in terms of the first conclusion.

[45] In relation to the financial conclusion, senior counsel for the pursuer submitted that the statutory framework was to be found in the Family Law (Scotland) Act 1985. That the starting point was to determine the "relevant date" in terms of section 10(3). This provides:

"In this section 'the relevant date' means whichever is the earlier of -

(a) .... the date on which the persons ceased to cohabit ...".

The primary submission of senior counsel was that it was plain from the evidence that the cessation of cohabitation was in December 2005. It was plain from the evidence that the parties had never lived together as husband and wife or had marital relationships since 3 December 2005 when the defender left Scotland and went to Russia. She referred to Clive, Husband and Wife 4^th Edition paras.21-070 and 21-075. She prayed in aid Banks v Banks 2005 Fam.L.R. 116 at page 123, and p. 128. Senior counsel accepted that in some cases where there was no complete physical separation, the mental attitude of the parties and general circumstances might be relevant in deciding the relevant date. She distinguished the approach adopted in the English jurisdiction illustrated in Santos v Santos [1972] Fam. 247. She pointed out that the legislation in England was different and focused on separation not cohabitation.

[46] She submitted that even if she was wrong in her primary submission, the evidence plainly established that by about June 2006 both parties and certainly the defender were not prepared mentally to continue with the marriage. She referred to the history of difficulties in the marriage dating from at least December 2005. Whatever the merits of the problems about the visa and the previous marriage of the defender, it was plain from the evidence that by about June 2006 the communications between the parties changed. She referred to the email correspondence 6/34 - 6/37. The parties were getting on with their lives. She accepted that the pursuer continued to give some financial support to the defender including the sum of £10,000 for a car which the defender had requested. The pursuer's attitude in his evidence was that he did not want to upset the defender who was getting on with her life in Russia. Counsel for the pursuer accepted that he did not in terms say that the marriage was over until September 2006 after the defender returned to Scotland. Referring to the defender's return, senior counsel for the pursuer submitted that neither party had suggested in evidence that the return to Scotland was for the purposes of reconciliation. Indeed the defender accepted that she came without warning. Her evidence was that she had come to a view that the pursuer since about December 2005 had deliberately tried to keep her away from Scotland. She had lost trust in him. Senior counsel submitted that the pursuer had accepted that in the context of negotiations, the date of separation was not important to him but that was now irrelevant. If the proper legal approach was applied to the evidence, there could be only one date, that is 3 December 2005, identified as the relevant date. The date of September 2006 which the defender proposed was not the relevant date, even if a much wider approach was adopted taking into account the mental element of the parties and the continuing financial support by the pursuer of the defender. If that wider approach was adopted, the evidence painted to June 2006 possibly but certainly not September 2006.

[47] In relation to the statutory provisions regulating financial provision in divorce, senior counsel for the pursuer referred to section 8 of the 1985 Act. She pointed out the absence of any relevant averments to found a case for the defender. As a pragmatic solution, the pursuer's advisers had provided calculations summarised in 19 of process identifying assets as matrimonial property and the value thereof at various possible dates, namely December 2005, June 2006 and September 2006. She submitted that the pursuer was not seeking to avoid or reduce any payment considered appropriate by the Court in terms of the relevant legislation. His position was that he was prepared to pay any such payment and therefor, the extent of his present resources, other than matrimonial property, was irrelevant. She referred to Welsh v Welsh 1994 S.L.T.828. Senior counsel for the pursuer accepted that the pursuer had assets acquired before the marriage which were not matrimonial property which had not been disclosed. She submitted that in the context of the case this was a correct approach.

[48] Senior counsel for the pursuer referred to the principles to be applied under the 1985 Act in terms of section 9. She accepted that section 9(a) applied and that the net value of the matrimonial property should be shared fairly between the parties to the marriage. She referred to the definition of "matrimonial property" in section 10(4) which states "matrimonial property" means all the property belonging to the parties or either of them at the relevant date which was acquired by them or him (otherwise than by way of gift or succession from a third party) - (a) before the marriage for use by them as a family home, or as furniture, or plenishings for such house; or (b) during the marriage but before the relevant date. Senior counsel submitted that section 10(1) means that there is a presumption of equality which could be departed from, if there are special circumstances to be determined in the Court's discretion. She referred to Jacques v Jacques 1997 S.C.(H.L.) 20, Lord Clyde at page 24. She submitted that the shortness of the marriage is a factor under reference to Kerrigan v Kerrigan 1998 S.C.L.R.603. She did not submit that the shortness of the marriage in this case should necessarily result in a substantially unequal division. She prayed in aid Whittome v Whittome (No.1) 1994 S.L.T.114 at page 126C-D. Lord Osborne stated:

"As I understand the policy of that part of the Act of 1985 which relates to the making of a financial provision on divorce, which includes the fair sharing of 'matrimonial property', is to the effect that, in general, the wealth acquired by the parties, subject to the statutory exclusion, or generated by their activity and efforts during the course of their life together, is, in the absence of 'special circumstances', to be shared equally".

[49] Senior counsel for the pursuer submitted that in relation to the claim for a capital sum, the proper approach was for the Court to decide the net value of the matrimonial property and divide it fairly between the parties.

[50] Senior counsel referred to the oral evidence given by the pursuer in which he spoke to No. 19 of process and various supporting documents to explain the various items of matrimonial property and valuations thereof. Senior counsel submitted that the matrimonial property was not high in value. The defender had stated in her evidence that there were hidden and concealed matrimonial assets but she had given no factual basis to support that. It was submitted that although the defender appeared as a party litigant, it was plain from the evidence that she had instructed at different times various solicitors and counsel. She had accepted in evidence that she had refused to meet Lizars and the pursuer's solicitors when they offered to explain and provide assistance in understanding the documentation which they had prepared to assist the defender and the Court. The pursuer had been allowed to lodge 7/62 of process late. This was a document which had been prepared on behalf of the pursuer to assist the defender and her agents in understanding the pursuer's involvement in various companies. In view of the shortness of the marriage, the absence of any evidence that the defender made any significance economic contribution and against a background that she had received very substantial sums from the pursuer, it would be impossible to justify giving the pursuer more than a half share of the value of the matrimonial property at the relevant date.

[51] Senior counsel then turned to deal with the defender's claim for "maintenance". She accepted that it was still competent under the 1985 Act for a Court to award periodical allowance. She referred to sections 8 and 13 of the 1985 Act. She submitted that the philosophy of the law was now to promote a "clean break" and that in terms of section 13(2) the Court shall not make a order for a periodical allowance unless:

"(a) the order is justified by principles set out in paragraph (c), (d) or (e) of section 9(1) of this Act; and

(b) it is satisfied that an order for payment of a capital sum or for transfer of property or pension sharing order under that section would be inappropriate or insufficient to satisfy the requirements of the said section 8(2)".

She prayed in aid W v W 2004 Fam.L.R.54.

[52] Senior counsel for the pursuer submitted that this was a case in which no periodical allowance was appropriate. The defender was self-supporting prior to the marriage. Her evidence was that she had qualified as a medical practitioner but by choice about 6 years before the marriage had ceased to work in that capacity. She had chosen to carry out more remunerative work. She now had a choice of work available to her in Russia. Her English language skills were good and had improved since the marriage. This increased her employment opportunities both in Russia and the UK where she claimed she was now entitled to work. She had found employment in the UK and was well able to do so again. This very short marriage had not limited her employment opportunities. Senior counsel for the pursuer submitted that it is the defender's choice or aspiration to retrain as a GP in the UK but that does not entitle her to continuing support from the pursuer in order to do so. The mere fact that the pursuer may have acquired prior to the marriage or after the relevant date substantial resources does not entitle the defender to ongoing support as was clear from Welsh v Welsh.

Submissions by the defender
[53] The defender submitted that the relevant date was September 2006. She referred to Clive, para 21.076-077. She drew attention to the author's views particularly at 21.077 that "living under the same roof will generally be important but will not be conclusive..... Conversely a husband and wife might live for much of the time under different roofs and yet might still be living together as man and wife.....". The defender submitted that the separation in 2005 was as a result of her going on holiday as she had done before. The intention of the parties was to come together again. She did not go to Moscow to separate from the pursuer. It was a short time thereafter that the pursuer raised what she alleged to be unfounded difficulties about her visa and her former marriage. The defender submitted that at first she had considered these real problems but there came a point in the summer of 2006 when her perception was that the pursuer had lied to her. She accepted that the evidence was that she had exchanged the various emails referred to in evidence but she submitted that the emails had to be seen in context. She submitted that the pursuer's mother on her own evidence was plainly unaware of the details of the relationship between the parties. She submitted that the evidence disclosed that she had been genuinely wishing a continuation of the marriage. She returned to Scotland to seek explanations from the pursuer about what she perceived as his deliberate attempt to keep her in Russia. She submitted that it was only in September 2006 at their first meeting since she left for Russia in December 2005 that she heard from the pursuer for the first time. "the real picture of our story". On the basis of the evidence the defender submitted that September 2006 was the relevant date. She submitted that the pursuer had been happy to accept that date in prior discussions.

[54] In relation to the evidence about finances, the defender submitted that she did not accept anything the pursuer said about his finances or anything put before her about his finances. She submitted that the information he gave could not be trusted. She submitted that she had explained in evidence that she could not afford full disclosure and an expert to carry out financial auditing of the pursuer's companies. She submitted that in the absence of full independent paperwork, the pursuer should not be believed. She submitted that her life had been disrupted by leaving Russia to marry the pursuer and that she had been caused great distress as a result of problems associated with her marriage to the pursuer.

[55] In relation to aliment, she submitted that she had suffered economic disadvantage. She had hoped to be happily married in the UK and lead a good life. She had established herself again in Scotland since October 2006. She submitted that she had explained in evidence that she had been financially dependent on the pursuer for the last few years and that even with her salary from employment, she was unable to support herself. She submitted that both parties bore responsibility and that she had to adjust. She submitted that the pursuer should take some responsibility to enable her to become completely independent. She could achieve this by qualifying as a GP in Scotland albeit that would take some years and she would incur substantial costs.

[56] Finally in her submissions she referred again to the criticisms which she had made in evidence about the lack of independent valuations and the lack of full disclosure, as she interpreted it. She summarised the main points of her evidence. In conclusion she submitted that she was seeking some financial payment to adjust after the divorce.

Discussion
[57] There was undisputed evidence that the parties had not co-habited for a period of more than one year and that the defender had consented to decree of divorce. It was plain from the evidence of the parties and Mrs Elizabeth Carrick that this was the case and that there was no prospect of reconciliation. I am satisfied that there has been an irretrievable breakdown of the marriage of the parties and that decree of divorce in terms of the pursuer's first conclusion should be granted.

[58] In this action the defender seeks payment of a substantial capital sum. Section 10(1) of the 1985 Act provides that the net value of the matrimonial property shall be shared equally or in other proportions as are justified by special circumstances. Section 10(2) defines the net value of the person's property as the value of the property at the relevant date after deduction of any debts incurred by one or both of the parties to the marriage. Not all property owned by parties is necessarily matrimonial property. Section 10(4) defines "matrimonial property". I consider that the first part of my task is to decide what is the relevant date for the purposes of Section 10(3)(a) of the 1985 Act. On behalf of the pursuer it is contended that the relevant date is December 2005. The defender contends that the relevant date is September 2006. In my opinion the cessation of co-habitation is a question of fact to be determined from the evidence.

[59] In this case both parties had complaints and criticisms to make about the behaviour of the other party. Some of these complaints were touched upon in the evidence. Plainly if the matter had proceeded to proof in relation to conclusion two, it would have been necessary to asses the truth or falsity of averments in order to consider whether or not to grant decree of divorce to the pursuer on the basis of the defender's behaviour. It was my impression that the pursuer understood that the proof did not extend to these matters because the defender had consented to decree of divorce and that he did his best to avoid allegations bearing upon the defender's behaviour. I consider that the defender also understood this but she showed considerably less restraint than the pursuer in this respect. I wish to make it clear that on the basis of the evidence led, I am not in a position to asses the truth or falsity of the averments in relation to the merits which were focused in article 3 and answer 3. There was evidence before me of how the parties perceived their relationship from time to time. I am prepared to accept both parties as credible and reliable in relation to their perception, albeit that does not mean that I accept either are correct about the facts which may at the time have influenced and may still influence their perception.

[60] When I consider the evidence about the parties relationship with the benefit of hindsight, I am in no doubt that the date on which the parties ceased to co-habit for the purposes of the 1985 Act is December 2005. I consider that the submissions made by senior counsel for the pursuer set out in paragraph 45 are well founded. This is a case in which there has been a complete physical separation of the parties since 3 December 2005. That is not disputed. It is also not disputed that there was no resumption of marital relations after 3 December 2005. I accept that it was not the parties intention to cease co-habitation as husband and wife on 3 December 2005 but in my opinion clearly that was the result of events thereafter. I do not consider that affectionate e-mail correspondence and an element of financial support post December 2005 in the circumstances of this case are sufficient to persuade me to a different conclusion.

[61] I have considered the submission on behalf of the defender summarized in paragraph 53. I consider that the passage from Clive relied on by the defender does not support the defender's submission. The author is not purporting to deal with a situation where the parties are completely physically separated and have had no marital relations during the period apart. In relation to the circumstances post December 2005 raised by the defender, I have considered these in some detail. I accept that in December 2005, the defender thought that there might be problems in their relationship but was reassured by the pursuer. The pursuer had concerns about the marriage but kept these concerns to himself. It is plain from the evidence from both parties that the defender's visit to Russia in 2005 was not intended by either of the parties at the time to be a permanent separation. It is also plain from the evidence that, as events turned out, it resulted in a permanent separation. I accept that the parties continued to communicate generally on an affectionate basis at least until June 2006. I accept that the pursuer thought the marriage was over by June 2006 but never disclosed to the defender his feelings that the marriage was over until September 2006. I accept that the pursuer financially supported the defender in a substantial way both before and after December 2005. I accept that from the pursuer's perspective, the marriage was over by at least June 2006 albeit he regarded himself as responsible financially for the defender until the marriage was officially dissolved. From the defender's perspective, I accept her evidence that after December 2005 she wanted the marriage to continue for a period after the separation. In the summer of 2006 she lost trust and faith in the pursuer. With hindsight she blames the pursuer because, from as early as December 2005, he raised non-existent difficulties and lied to her in order to keep her in Russia. The evidence in this case does not establish one way or the other whether there were true visa difficulties or true problems about the status of the defender's previous marriage. In my opinion, these matters which are not pled in relation to the financial conclusions are in any event unhelpful to the defender's case. If the defender is correct and the pursuer, as early as December 2005, was starting to lie to her and continued to lie or mislead her in order to keep her in Russia and prevent her return to him in the UK, he plainly could not be said to display a wish to cohabit post December 2005. The defender accepts that by the summer of 2006 she had lost all trust and faith in the pursuer because of his behaviour which she considers started shortly after December 2005. If the logic of her position is accepted, it would be impossible to conclude that the parties had the mental attitude of co-habiting as husband and wife in September 2006. The logic of the defender's position is that after 3 December 2005, the pursuer by his attitude, was no longer committed to the parties living together as husband and wife. The defender's perception is that shortly after she left Scotland in December 2005, the pursuer started raising difficulties to prevent her returning to Scotland. I am of the opinion that if the mental element of the parties is relevant, neither the evidence of the pursuer nor the defender supports a position of the parties wishing to maintain the relationship of husband and wife up to September 2006. Even taking the most generous view of the defender's evidence, and even accepting that the mental element of the parties was relevant, I conclude that the evidence on that basis also points to December 2005 as the relevant date.

[62] I now consider what is "matrimonial property" for the purposes of section 10(4) of the 1985 Act. I consider that this case is somewhat unusual in that the defender, who makes the claim for a capital sum and aliment, has put forward very little evidence about the pursuer's assets. She does not even claim to know what the assets are. Her starting position is that she does not believe the pursuer because in some unspecified way he is hiding his assets. It was entirely unclear to me whether the defender realised that this proof is concerned to determine the matrimonial assets and not an enquiry into the whole history and value of the pursuer's assets acquired prior to the date of the marriage. While I accept that the defender may not trust the pursuer, I found no evidence to suggest that the pursuer lied on oath about the extent and value of matrimonial assets. Indeed I am satisfied that the pursuer and his legal advisors have done a great amount of work to try to demonstrate and explain the matrimonial assets. Had the pursuer not provided this information, there would have been very little evidence at all to support any claim by the defender. I require to proceed on evidence, not speculation. On the evidence before me, which I have summarised, I am satisfied that the matrimonial property spoken to in evidence by the pursuer is set out in 19 of process. That document does not included a reference to the caravan which was the matrimonial home but inclusion of that asset is not required. The evidence which I accept was that the caravan was acquired by a company and was not the personal property of the pursuer. The defender gave no contrary evidence and did not cross-examine the pursuer about this. The total value of matrimonial property as at December 2005, the relevant date, is £34,076. This is a relatively modest sum but does represent a valuation covering a very short period from the date of the marriage 28 January 2005 to 3 December 2005. The defender's evidence which was wholly lacking in specification was totally inadequate to persuade me that the information provided by the pursuer in evidence and partly supported by documentation was untrue. I consider for example that the absence of an independent valuation report about the value of the new build property described in paragraph 10 was understandable in view of the explanation about the minimal value of the property which did not strike me as exaggerated. In any event the proof is an adversarial process and in this case the pursuer has done a great deal to provide evidence. The defender's case appears to be based on pure speculation.

[63] The 1985 Act, Section 9 directs my attention to the principles which the Court shall apply in deciding what order for financial provision, if any, to make. This was a very short marriage of less than one year. There are no children. The pursuer obtained no economic advantage from the defender. Plainly the defender has obtained economic advantage in the sense that she has been supported since the date of the marriage mainly by the defender. She has not in my opinion been disadvantaged in the future labour market. The evidence was to the effect that her English language skills had improved and that this would be of advantage to her both in Russia and in the UK. Bearing in mind that the defender accepted that it was some six years since she had worked in the medical profession in Russia before she met the pursuer, I do not accept that her medical career was in any way disadvantaged by her marriage to the pursuer. She has, despite the difficulties of litigation and distress about the marriage, obtained a good job offer in Russia which she rejected. She has obtained employment in the UK which she enjoys. She is skilled and employable in both countries. I accept that her earning potential would be greater if she requalified as a GP in Scotland. I accept that would take some years and involve substantial financial expenses. In my opinion, however, there is no reason to make the pursuer bear the expense of the defender's wish to work as a GP and increase her earning potential. I accept that the defender has been dependant in part on the financial support of the pursuer. The evidence is plain that she is capable of earning and supporting herself both in Russia and in the United Kingdom. I do not consider the fact that her standard of living might be lower than it has been, because of the absence of financial support from the pursuer, is a reason for continuing support post decree. The defender is perfectly able to obtain employment and earn her own living.

[64] I consider that in all the circumstances there are no special circumstances and no justification for an order for periodical allowance. I accept that the defender is entitled to an order for the payment of a capital sum from the pursuer. I have had regard to the principles and provisions of the 1985 Act and conclude that the defender is entitled to payment from the pursuer of one half of the net value of the matrimonial property which is the sum of £17,038.

[65] I have not dealt with expenses. The case will be put out By Order to hear submissions about expenses.