BP AGAINST R M OR P
SHERIFFDOM OF GRAMPIAN, HIGHLAND AND ISLANDS AT BANFF
[2016] SCBAN01
Judgment
Of
Sheriff Philip Mann
In causa
B P, residing at [Property One]
PURSUER
Against
MRS. R M or P, residing at [Property Two]
DEFENDER
Banff 31 December 2015
The Sheriff, having resumed consideration of the cause: -
Makes the following findings in fact: -
1. The parties are husband and wife and were married at Highland, Latheron on 27th June, 2009. There are three children of the marriage under the age of sixteen years, namely E B P born 18th June 2006, O J P born 10th March 2008 and S A M P born 1st May 2010.
2. The pursuer resides at [Property One], which was the matrimonial home during the marriage.
3. The defender resides at [Property Two]. She relocated there with the children when the parties separated.
4. The parties separated on 10 February 2013, which is the relevant date for the purposes of Section 10(3) of the Family Law (Scotland) Act 1985.
5. The children reside with the defender and have contact with the pursuer, all in terms of an interlocutor of this court pronounced in separate proceedings. The pursuer incurs significant expense in performing his obligation to maintain contact with the children.
6. The parties have been separated for more than a year. The defender consents to decree of divorce being granted. Her written consent is in process.
7. The marriage was of short duration.
8. Prior to the marriage the defender owned a flat in Huntly. The defender sold the flat and invested the proceeds thereof in the erection of the property known as [Property One], referred to in finding in fact number 2.
9. [Property One] is erected on ground which was gifted to the parties by the pursuer’s uncle, J W, the motivation for the gift being the relationship between the pursuer and J W.
10. The title to the ground upon which [Property One] is erected was taken, and remains, in the joint names of the pursuer and defender as pro indiviso proprietors in the proportions of 40% and 60% respectively.
11. In agreeing to the manner in which the title to [Property One] was taken the parties had the benefit of legal advice.
12. Prior to the marriage the defender had other assets, comprising her savings and a debt of £21,000 due to her by her brother, amounting in total to approximately £65,150. The debt was repaid during the marriage.
13. During the marriage the parties maintained separate finances.
14. The defender’s pre-marital assets became intermingled with funds acquired by her through her employment during the marriage.
15. The defender’s intermingled funds were utilised in the acquisition of various items of property. The parties thereby acquired matrimonial assets and, along with the children, had the benefit of them sooner than would otherwise have been the case.
16. During the marriage the defender was the higher earner. She continues to earn more than the pursuer.
17. During the marriage the defender’s contribution to caring for the children and running the home was, at least, equivalent to that of the pursuer.
18. One of the items of property contributed to by the defender’s intermingled funds was a wind turbine which supplies electricity to [Property One].
19. The wind turbine is erected on ground belonging to the pursuer’s uncle, J W.
20. Negotiations between the parties and J W for the acquisition by the parties of title to the ground upon which the wind turbine is erected broke down upon the separation of the parties.
21. During the marriage the pursuer entered into a contract with an electricity supply company entitling him to income in respect of electricity generated by the wind turbine. A sum of £10,000 generated from that source of income prior to the relevant date was applied to reduction of the mortgage secured over [Property One]. In the period up to the date of the proof the pursuer received further income from that source amounting to approximately £26,000.
22. The parties are agreed that neither the wind turbine nor the foregoing contract is an item of matrimonial property.
23. As at the relevant date the matrimonial property consisted of: -
(a) The property at [Property One], with a value of £270,000.
(b) The property at [Property Two], in the joint names of the parties with a value of £145,000, £2,500 of which is attributable to improvements made by the defender after the relevant date.
(c) The pursuer’s pension with Aegon. This was derived entirely from a pension fund belonging to the pursuer prior to the marriage.
(d) The defender’s SPPA pension with a value of £11,292.96.
(e) A SMax motor vehicle with a value £15,000 retained by the defender.
(f) A Toyota RAV motor vehicle, meantime off the road in a commercial garage as a result of a dispute between the parties, with a value of £10,000.
(g) a Caravan with a value of £11,000 retained by the defender.
(h) The parties’ joint bank account with a value of £746.11 at the date of separation and a current balance of £1,205.07.
(i) The pursuer’s apportioned Scottish Widows Pension with a value of £1,194.29.
(j) The pursuer’s fidelity investment in the sum of £2,068.90
(k) The pursuer’s Halifax Classic Vantage Account in the sum of £285.16
(l) The pursuer’s Halifax Current Account in the sum of £384.74
(m) The pursuer’s Online Saver Account in the sum of £3,494.23
(n) The defender’s savings amounting to £61,962.11
24. Matrimonial debt as at the relevant date consisted of a mortgage with Halifax Bank of Scotland amounting to £115,198 secured over the property [Property One]. Both parties contributed to the reduction of the mortgage after the relevant date, although the pursuer did not contribute for a few months between the relevant date and September 2013. As at the current date the mortgage amounts to approximately £100,000.
25. There is no prospect of a reconciliation between the parties.
Makes the following findings in fact and law: -
1. The marriage has broken down irretrievably.
2. There is no need for me to exercise with respect to the children any of the powers conferred by section 11 of the Children (Scotland) Act 1995 or section 62 of the Children’s Hearings (Scotland) Act 2011.
3. The circumstance set out in finding in fact 23(c) is a special circumstance justifying a departure from the principle of equal sharing of the net value of the matrimonial property. This will be achieved by allowing the pursuer to retain his Aegon pension and leaving its value out of account.
4. The circumstances set out in findings in fact 8 to 11, inclusive, are special circumstances justifying a departure from the principle of equal sharing of the net value of the matrimonial property. This will be achieved by allocating the value of [Property One] to the pursuer and the defender in the proportions of 40% and 60% respectively.
5. The circumstances set out in findings in fact 7 and 12 to 17, inclusive, are special circumstances justifying a departure from the principle of equal sharing of the net value of the matrimonial property. This will be achieved by allowing the defender to retain her savings as at the relevant date and leaving the value thereof out of account.
6. The circumstances set out in findings in fact 18 to 22, inclusive, are special circumstances justifying a departure from the principle of equal sharing of the net value of the matrimonial property. This will be achieved by finding the defender entitled to one half of the income derived from the wind turbine contract up to the date of the proof, namely a sum of £13,000.
7. Fair sharing of the net value of the matrimonial property will be achieved if: -
(a) The title to [Property One] is transferred to the sole name of the pursuer.
(b) The pursuer becomes solely liable for the mortgage secured on [Property One].
(c) The title to [Property Two] is transferred to the sole name of the defender.
(d) The funds in the parties’ joint bank account are shared equally between the parties.
(e) The parties, at joint, equal expense, secure the release of the Toyota Rav motor vehicle from the commercial garage, arrange its sale and divide the proceeds thereof equally between them.
(f) The pursuer makes payment to the defender of the sum of £39,000.
(g) Subject to the foregoing the parties each retain the assets currently vested in, or retained, by them respectively.
8. Orders in implement of finding in fact and law number 7 are reasonable having regard to the resources of the parties.
9. Having regard to the resources of the parties and to the circumstances set out in findings in fact 5 and 16 there is neither need nor justification to adjust the sharing of the net value of the matrimonial property as set out in finding in fact and law number 7 to reflect fair sharing of the economic burden of caring for the children.
10. Decree of divorce should be granted but should be delayed until orders in implement of finding in fact and law number 7 can be made.
Therefore, continues the cause to a hearing on Friday 29th January 2016 at 10:00am within the Sheriff Court House, Low Street, Banff to enable parties to address the court on the final orders required to implement finding in fact and law number 7 and to enable decree of divorce to be granted; reserves all questions of interest and expenses meantime.
Sheriff Philip Mann
Note
1. General
1.1 This is an action of divorce on the grounds of separation for a period of one year and the defender’s consent to decree of divorce being granted. The parties married on 27 June 2009. I was satisfied on the evidence of the parties and of A G, by way of affidavit, that the parties separated on 10 February 2013 and had thus been separated for a period in excess of one year. I was satisfied that they had not cohabited as husband and wife since the date of separation. The defender’s written consent to decree of divorce being granted is in process and was spoken to in the evidence of the pursuer. I am satisfied that the marriage has broken down irretrievably and that there is no prospect of a reconciliation. Accordingly, decree of divorce should be granted.
1.2 There are three children of the marriage under the age of 16 years. They reside with the defender and have contact with the pursuer in terms of an order of this court made in separate proceedings. In terms of section 12 of the Children (Scotland) Act 1995 I have concluded that there is need for me to exercise any of the powers available to me by virtue of section 11 of that Act or by section 62 of the Children’s Hearings (Scotland) Act 2011.
1.3 The dispute between the parties in this case concerns the fair sharing of the net value of the matrimonial property.
1.4 On record, the pursuer craves the court: -
(i) to grant an order for transfer of the defender’s right title and interest in the heritable property [Property One] to the pursuer;
(ii) to make an order for payment to the defender by the pursuer of the sum of £13,500 being the balancing payment in respect of the transfer of property.
1.5 On record, the defender craves the court: -
(i) To grant decree for the transfer of the pursuer’s right, title and interest in the heritable property at [Property Two] to the defender;
(ii) To grant decree against the pursuer for a payment to the defender of a capital sum of One Hundred and Eighty Thousand Pounds (£180,000) Sterling with interest thereon.
2. The Evidence
2.1 The proof in this case took place on 2 and 3 July 2015.
2.2 Evidence for the pursuer was given by way of affidavits sworn by the pursuer, by his uncle J W and by A G. The pursuer and J W also gave oral evidence in the course of which they adopted their affidavits.
2.3 The defender gave evidence by way of affidavit. She also gave oral evidence in the course of which she adopted her affidavit.
2.4 There was little, if any, dispute as to what the matrimonial assets consisted of as at the relevant date. These are as set out in finding in fact 23. The evidence was essentially devoted to the source of funds for the acquisition of the matrimonial assets and as to the correct valuations to be applied to the two dwellinghouses which formed part of those assets.
2.5 As I understood the evidence, there was no dispute that prior to the marriage the defender owned a flat in Huntly and also had other funds. These comprised a loan due to her by her brother, which was repaid during the marriage, and bank accounts and other savings amounting in total to a little over £65,000. There was no dispute that the defender used the sale proceeds of her flat to assist in the erection of the matrimonial home known as [Property One]. Although the defender maintained that the source of the funds used to acquire certain matrimonial assets could be traced back to the funds which she held prior to the marriage I was satisfied that, in general, those funds had become intermingled with other funds accumulated during the marriage and that the intermingled funds had been used for the purchase of matrimonial assets and for general family expenditure. This included expenditure on a wind turbine which was situated on land belonging to the pursuer’s uncle but which provided electricity to the matrimonial home. In general, I preferred the evidence of the pursuer on these matters to that of the defender, which I found to be unclear and difficult to follow. However, on the view that I have taken on the question of special circumstances justifying departure from the principle of fair sharing of the net value of the matrimonial property, which I discuss later, nothing really turns on this or on general questions of credibility and reliability.
2.6 There was no dispute that the parties had taken title to the matrimonial home in unequal shares, being 40% in name of the pursuer and 60% in name of the defender.
2.7 There was no dispute that in addition to the matrimonial assets the pursuer held a contract with electricity suppliers in terms of which the pursuer was entitled to a proportion of the income generated by the wind turbine. There was no dispute that the pursuer held a bank account into which had been deposited income received by the pursuer from that source in the period up to the date of the proof amounting to approximately £26,000. Nor was there any dispute that, in addition, a sum of £10,000 from that source had been applied to reduction of the mortgage secured over [Property One].
3. Submissions
3.1 Both parties lodged written submissions which I have found to be very helpful and for which I am grateful. Both parties also made oral submissions on 24 September 2015.
3.2 I invited further submissions from parties as to the correct approach to the valuation of the contract in the pursuer’s name relating to the income generated from the wind turbine. The invitation was contained in my interlocutor of 22 October 2015 to which I attached a note explaining my concerns. I heard these further submissions on 19 November 2015. In the course of her submissions, Mrs MacAndrew advised me that it was not part of the defender’s case that the wind turbine contract was a matrimonial asset. I have accordingly proceeded on that basis.
3.3 Mrs Simpson for the pursuer submitted that apart from the matrimonial home, [Property One], there were no special circumstances, such as source of funds, to justify a departure from the principle of equal sharing set out in section 10(1) of the Family Law (Scotland) Act 1995. As regards the matrimonial home she accepted that the taking of the title to the matrimonial home in unequal shares represented an agreement between the parties which was a special circumstance justifying such a departure. Her submission was that the parties had agreed the unequal shares with the benefit of legal advice and that it was reasonable to assume that they had taken account of all the circumstances surrounding the funding of the property in coming to that agreement. Those circumstances included the fact that the pursuer’s uncle had made a gift to the pursuer of the ground upon which [Property One] had been built. This, according to Mrs Simpson, should be seen as a contribution on the part of the pursuer to the acquisition of [Property One]. Mrs Simpson submitted that in all the circumstances a 60/40 split of the value of [Property One] in favour of the defender should be the extent of the unequal division of the net value of the matrimonial property. She submitted that as the defender had been unable to demonstrate that the purchase of the other items of matrimonial property had been funded specifically by her pre-marriage funds she was not entitled to claim that there existed any special circumstance justifying unequal division of them.
3.4 Mrs Simpson produced schedules which demonstrated that if the pursuer had to make a capital payment of £180,000 to the defender, as craved, the defender would end up with more than the net value of the matrimonial property whilst the pursuer would end up in a negative position. In Mrs Simpson’s schedules the value of the bank accounts and other investments in the defender’s name at the relevant date, including an estimate for accounts for which the defender had produced no vouching, came to just under £50,000.
3.5 Mrs Simpson argued that the value of the pursuer’s pension with Aegon should be left out of account on the basis that it derived entirely from pension funds held by the pursuer before the marriage.
3.6 Mrs MacAndrew for the defender submitted that in respect of [Property One] the defender should be credited with at least 60% of its value and should, in fact, be credited with an even higher percentage of its value having regard to, inter alia, the fact that the pursuer had made little or no personal contribution to the acquisition of that property. She maintained that the defender should be entitled to credit for other expenditure made during the marriage but out of the funds held by her prior to the marriage, including expenditure relative to the purchase and refurbishment of [Property Two] and the purchase of the caravan and other items of matrimonial property. In addition, Mrs MacAndrew submitted that the fact that the pursuer had failed to pay anything towards the mortgage on [Property One] or towards the maintenance of the children for a period following the relevant date warranted a further departure from the principle of equal sharing.
3.7 In Mrs MacAndrew’s submission the defender’s pre-marital assets, over and above her flat, amounted to £65,166.85. This included a debt due to her by her brother amounting to £21,000 which had been repaid to her during the marriage. She calculated that the bank accounts in the defender’s name as at the relevant date amounted to £61,962.11.
3.8 There was a dispute about a debt of £10,000 which the defender said was due to her father. It was said to have arisen from an arrangement involving the acquisition of [Property Two] which was part of larger subjects bought by the defender’s father and then sold on to the parties.
3.9 Whilst Mrs MacAndrew did not seek to argue that the wind turbine contract in name of the pursuer was matrimonial property, the value of which required to be shared between the parties, she nonetheless argued that it would be unfair were the pursuer to be found entitled to retain the whole of the income which had been generated by that contract. She maintained that that income, which amounted to approximately £26,000, should be shared equally between the parties.
3.10 Mrs MacAndrew also submitted that the defender was entitled to a payment in terms of section 9(1)(c) of the 1995 Act to reflect fair sharing of the economic burden of caring for the children of the marriage.
3.11 The parties were in dispute as to the correct valuation of [Property One] to be adopted for the purposes of division. They were agreed, on the basis of a professional valuation, that there were three possible values. These were: -
(a) In the event that the market value is based on the turbine land being owned by the parties to the action the value should be taken to be £310,000;
(b) In the event that the market value is to be the value with the turbine removed the value should be taken to be £285,000.
(c) In the event that the market value is taken to be with the turbine present on adjacent land but without financial or environmental value to the property the value should be taken to be £270,000.
3.12 Mrs Simpson argued that the correct valuation was £270,000 as it could be seen from the evidence that the proposition upon which that valuation was based was the nearest to the particular circumstances of this case; it was clear that the wind turbine was situated on land not belonging to either of the parties and that the benefit of the wind turbine could not be passed on to a purchaser without the land upon which it was erected being acquired. Mrs MacAndrew argued for the highest of the three valuations on the basis that it was clear from Mr Watson’s evidence that he would not disturb the arrangements regarding the wind turbine for so long as the pursuer owned [Property One].
3.13 In their submissions, parties departed somewhat from their craves. In summary, Mrs Simpson sought transfer of the title to [Property One] to the sole name of the pursuer on the basis that the pursuer would be responsible for the mortgage secured on the property. She also submitted that the title to [Property Two] should be transferred to the sole name of the defender and that there should be such balancing payment as the court thought fit. In summary, Mrs MacAndrew accepted Mrs Simpson’s suggestions for the properties and the mortgage. In addition, she sought a capital payment from the pursuer to the defender. At one point in her written submissions she sought the sum of £180,000 as craved but elsewhere therein she sought the sum of £95,517.47
4. Discussion and Decision
4.1 The parties are agreed that the pursuer should take title to [Property One], subject to being responsible for the mortgage secured upon it, and that the defender should take title to [Property Two]. I have provided accordingly.
4.2 I accept that the pursuer has a source of funds argument in relation to his pension with Aegon and that that argument should prevail. The pension was derived, and could be seen to have been derived, wholly from a pension fund held by the pursuer with a different pension provider prior to the marriage. Accordingly, I leave the value of that asset out of account.
4.3 I consider that there are special circumstances relating to the matrimonial home, [Property One], which justify a departure from the principle of equal sharing. These special circumstances are that the defender invested the sale proceeds of the flat which she owned prior to the marriage into [Property One] and that the parties agreed that the title should be taken in unequal shares. The position with regard to the provision by the pursuer’s uncle of the land upon which the property was built I regard as being neither here nor there, but I think that the position must be that the gift was made to the parties jointly, although the motivation for the gift was the relationship between the pursuer and his uncle. The crucial factor here is that in agreeing to the unequal shares the defender had the benefit of legal advice; and having observed the defender in the witness box I am satisfied that she is a lady of some considerable intelligence with a better than average grasp of financial matters who would not have agreed to that division unless she considered it to be fair and reasonable at the time. Accordingly, the value of [Property One] falls to be divided between the parties in the proportions of 40% to the pursuer and 60% to the defender.
4.4 I am of the view that there are special circumstances involving the defender’s pre-marital funds which take this case out of the norm and which justify a further departure from the principle of equal sharing of the net value of the matrimonial property. The special circumstances are these: -
i) This was a marriage of short duration.
ii) The defender was the main breadwinner.
iii) By introducing her pre-marital funds and intermingling them with the funds accrued during the marriage the defender enabled the parties to acquire assets and to have the benefit and enjoyment of them, along with the children, earlier than would otherwise have been the case.
iv) The evidence revealed that the parties maintained their own separate finances and that there was very little pooling of resources.
v) There was no suggestion in the evidence that the defender played less than an equal part in the care and upbringing of the children or in the day to day chores of family life. Accordingly, it cannot be said that the defender’s financial contribution to the marriage was counterbalanced by the pursuer’s non-financial contribution in looking after the children and in day to day chores.
In my view, it is fair to allow the defender to retain her bank account balances and to leave these out of account in the division of the net value of the matrimonial property. Mrs Simpson and Mrs MacAndrew differed in their calculation of the defender’s bank accounts as at the relevant date, with Mrs MacAndrew’s calculation being the higher. It is Mrs MacAndrew’s calculation that I have employed in my overall assessment of the fairness of the division of the net value of the matrimonial property that I have come to. According to Mrs MacAndrew’s calculation the defender will be retaining funds having a value almost equivalent to the value of her pre-marital assets over and above her flat. That being the case and quite apart from the fact that I am of the view that the defender has failed to prove that any specific part of her pre-marital assets is represented by any specific matrimonial asset as at the relevant date, there can be no conceivable source of funds argument – whether that be in relation to the purchase of [Property Two] or the caravan, or whatever – for any further adjustment of the sharing of the net value of the matrimonial property. It was clear from the tenor of the defender’s evidence and the submissions made on her behalf that the defender’s aim was to recover all of her expenditure during the marriage regardless of whether it derived from pre-marital funds or from her efforts during the marriage. That, simply, is not a tenable position.
4.5 Mrs MacAndrew suggested that the pursuer should also be entitled to retain his savings as at the relevant date whilst at the same time arguing for a very substantial payment from the pursuer to the defender. I must confess that I do not understand this suggestion. Mrs Simpson did not argue that the pursuer’s savings should be left out of account. The only possible special circumstance relating to the pursuer’s savings that I can see is that the parties maintained separate finances during the marriage. I do not consider that that, alone, justifies a departure from the principle of equal sharing of the net value of the matrimonial property by leaving the pursuer’s savings out of account. I therefore discount the suggestion.
4.6 There is, in my view, a further special circumstance which justifies a departure from the principle of equal sharing. This is the fact that the pursuer is in possession of an asset, namely the wind turbine contract, which is accepted by the parties as not being a matrimonial asset but which, nevertheless, has as its subject something – the wind turbine – which came into being through the efforts of both parties during the marriage. This is clearly a valuable asset. It has generated income to the relevant date amounting to approximately £26,000. This is in addition to the sum of £10,000 generated from that source and used to reduce the parties’ mortgage. In my view it would be fair to provide that the pursuer should pay to the defender a sum of £13,000, being one half of the amount first mentioned, out of the share of the net value of the matrimonial assets to which he would otherwise be entitled.
4.7 Given the parties’ agreement relating to the value of [Property One] I think that I must simply choose between the three possible values as set out in paragraph 3.11 hereof. I prefer Mrs Simpson’s submission that the value is to be taken as £270,000. The basis upon which that value is given is the nearest to the actual circumstances in this case, albeit that it is clear that the wind turbine does, for the present at least, have a financial value to the property. But, if the pursuer wished to be able to transfer the benefit of the wind turbine to any purchaser of the property he would have to acquire title to the ground upon which it sits from his uncle. That ground would have a value regardless of whether the pursuer paid for it or whether he got it by way of gift from his uncle. There is no reason why the defender should benefit from any such gift. There was no evidence as to the true value of the ground but it is not inconceivable that the value could be equal to the difference between the value of the property proposed by Mrs Simpson and the value of the property proposed by Mrs MacAndrew. It should be borne in mind, also, that I have found the defender entitled to one half of the accrued income from the wind turbine contract.
4.8 As regards the value of [Property Two], part of the defender’s claim for a capital sum relates to expenditure incurred by her after the relevant date in bringing the property up to a decent standard. It seems to me that such expenditure should only be taken into account if it resulted in an increase in the value of the property and should be reflected not in the calculation of the capital sum itself but in a reduction in the value to be attributed to the property prior to the calculation being carried out. The only evidence of expenditure affecting the value of the property is to be found in the valuation by D M Hall which suggests that were it not for the upgrading of the kitchen the value of the property would be £140,000 as opposed to £145,000. In the pursuer’s affidavit, paragraph 11, the pursuer maintains that at the relevant date the kitchen was paid for and partially installed. Productions 6/1/20 and 6/1/21 for the defender relate to the kitchen. 6/1/20 is a receipt for one half of the cost of the kitchen units. It is dated 16 August 2012, that is before the relevant date. 6/1/21 is a receipt for the balance of the cost of the kitchen units. It is dated 6 March 2013, that is after the relevant date. I am, therefore, prepared to accept that the defender spent money on the upgrading of the kitchen after the relevant date. I think that an assumption can be made that the kitchen was fitted before the balance of the cost of the units was paid. This means that the fitting would have taken place either before or round about the relevant date. The fairest approach is simply to reduce the value of the property for the purposes of division by one half of the increase in value attributable to the kitchen, to £142,500. On the basis that the property is transferred to the defender, this reimburses her to the extent of one half of the increase in value. She, of course, shares the other half of that increase in value with the pursuer.
4.9 I was unconvinced by the defender’s assertion as to the debt said to be due to her father. It was said to arise from an arrangement involving the acquisition of [Property Two] which was part of larger subjects bought by the defender’s father and then sold on to the parties. It was to do with an apportionment of price for the purposes of stamp duty land tax. I confess that I did not understand this chapter of the defender’s evidence. It was inherently unconvincing. There was a hint of an arrangement designed to avoid or reduce the burden of stamp duty land tax. Whether or not such an arrangement would have been legitimate I am not in a position to say on the basis of the evidence that I heard. Suffice to say that the defender has failed to prove the existence of the debt and I leave it entirely out of account.
4.10 As regards the Toyota Rav motor vehicle the overwhelming impression I have from the evidence is that it languishes in a commercial garage and is in limbo due to petty disagreements between the parties as to who agreed to do what as regards the road tax disc and evidence of insurance cover for one of the houses. I have found it impossible to decide who is in the right and who is in the wrong in this matter. I am unconvinced by the pursuer’s assertion that the parties had agreed that he should get the proceeds of sale to set against the costs to him of maintaining contact with the children. The parties have got themselves into the situation with this asset by being unreasonable and intransigent with each other. It is simple enough for them to sort it out. It is a depreciating asset. The fairest outcome, in my view, is to provide that the parties, at joint expense, secure the release of the vehicle from the commercial garage, arrange its sale and then divide the net proceeds equally between them. On that basis I leave the value of the vehicle out of account.
4.11 The parties can simply arrange for the sum at credit of their joint bank account to be shared equally between them and on that basis I leave this asset out of account.
4.12 Leaving out of account the defender’s savings, the Toyota Rav motor vehicle and the parties’ joint bank account the following table shows the matrimonial property and debts to be divided between the parties: -
| Asset | Joint | Pursuer | Defender |
| [Property One] | 270,000.00 | | |
| [Property Two] | 142,500.00 | | |
| Fidelity Investment | | 2,068.90 | |
| SPPA Pension | | | 11,292.96 |
| S Max Vehicle | | | 15,000.00 |
| Caravan | | | 11,000.00 |
| Halifax Classic Vantage Account | | 285.16 | |
| Halifax Current Account | | 384.74 | |
| Online Saver Account | | 3,494.23 | |
| Scottish Widows Pension | | 1,194.29 | |
| Mortgage | -100,000.00 | | |
| Totals | 312,500.00 | 7,427.32 | 37,292.96 |
4.13 I have considered whether the mortgage should be deducted from the value of [Property One] or whether it should be deducted from the gross value of the other assets before the division is calculated. This question is important because on the one view the defender would shoulder 60% of that debt whereas on the other view she would shoulder only 50% of it. I have come to the view that the mortgage should be deducted from the gross value of the assets other than [Property One]. This is because the evidence is that the mortgage was increased by £90,000 to help fund the purchase of [Property Two]; because in a question with the lenders the parties are equally liable for the mortgage debt; and because there is no evidence of any agreement between the parties that they are to be liable for this debt other than equally. As at the relevant date the mortgage stood at £115,198.10 but the pursuer acknowledges in the schedules lodged by Mrs Simpson along with her written submissions that by the time of the proof it had fallen to £102,740.14. It will have fallen further whilst the case has been at avizandum and will fall even further before it is taken over by the pursuer. Very little was said in the evidence about how the monthly mortgage payments were met after the relevant date but I noted the pursuer’s affidavit evidence that he contributed to the mortgage payments. I am able to infer from that that both parties contributed to the reduction of the mortgage balance, although it is the case, again by inference from the pursuer’s affidavit evidence, that the pursuer missed a few payments in the period from the date of separation to September 2013. So far as I have noted the evidence, there was nothing said about the equality or otherwise of the parties’ respective contributions to the mortgage after the relevant date. In my view, the fairest thing to do is to treat it as if the parties had contributed equally and also to use the current mortgage balance in the calculation of the net value of the matrimonial property. Using the judicial broad brush, I have shown the mortgage at £100,000.
4.14 Allocating 60% of the value of [Property One] and 50% of the net value of the other assets to the defender gives her a sum of £205,610.14. She already has assets to the value of £37,292.76. If she then gets [Property Two] she will have assets totalling £179,792.76. She will require to get a balancing payment of £25,817.38. If she then gets £13,000 in respect of the earnings from the wind turbine she will be entitled to a payment from the pursuer totalling £38,817.38. Using the broad brush approach, I will round that up to £39,000.
4.15 The pursuer has liquid matrimonial assets totalling £6,233.03. He also has a bank account containing the additional earnings from the wind turbine contract which amounted to £26,000. In addition, he will have received or will shortly receive further income from the wind turbine contract. He will have a share of the joint bank account and a share of the sale proceeds of the Toyota Rav motor vehicle. In his affidavit evidence the pursuer indicated that he was in a position to obtain his own mortgage to take over [Property One]. At that point the mortgage stood at just over £115,000. It now stands at around £100,000. I am satisfied that a payment of £39,000 by the pursuer to the defender is reasonable having regard to his resources.
4.16 The defender claims a payment to reflect the fact that for a period the pursuer failed to make contributions to the mortgage or to the maintenance of the children. The sums involved are de minimis in the whole circumstances and I sweep that claim away with the judicial broad brush.
4.17 The defender also claims a payment to reflect the fair sharing of the economic burden of caring for the children. The burden requires to be shared fairly, not necessarily equally. The sharing of the net value of the matrimonial property requires to be reasonable having regard to the resources of the parties. The defender earns more than the pursuer. The defender’s liquid assets are significantly greater than those of the pursuer. The pursuer incurs significant costs in performing his obligation to keep in contact with the children, who live at a considerable distance from him due to the defender’s decision to relocate following the separation. The pursuer contributes to the maintenance of the children through the Child Support Agency. In all of the circumstances I am of the view that no further adjustment of the sharing of the net value of the matrimonial property is justified having regard to the foregoing factors and the resources of the parties.
4.18 Accordingly, fair sharing of the net value of the matrimonial property will be achieved as set out in finding in fact and law number 7.
4.19 In the course of her submissions Mrs Simpson referred to the cases of Jacques v Jacques 1997 SC (HL) 20, B v B [2012] CSOH 21, Cunningham v Cunningham 2001 Fam LR 12 and McCormick v McCormick 1994 SCLR 958. I have read all of them. Bearing in mind that each case requires to be decided on the basis of its own facts and circumstances I can see nothing in any of them that precludes the division of the net value of the matrimonial property that I have come to.
5. Further Procedure
5.1 Parties will require to address me on the precise orders required to reflect finding in fact and law number 7. I have fixed a hearing for that purpose.
5.2 It is better at this stage, I think, to delay pronouncing decree of divorce rather than doing so and fixing a period of time within which the necessary orders are to be made.
5.3 Parties should address me on the question of expenses and interest at the forthcoming hearing.