IAN ANDERSON AGAINST CATHERINE ANNE MCALLISTER OR ANDERSON
2015SCGLA65
SHERIFFDOM OF GLASGOW AND STRATHKELVIN AT GLASGOW
F1369/13
JUDGMENT OF SHERIFF AISHA Y ANWAR
in the cause
IAN ANDERSON
Pursuer
against
CATHERINE ANNE McALLISTER or ANDERSON
Defender
Act: Mr Thompson, Solicitor.
Alt: Ms McIntosh, Solicitor.
GLASGOW, 6 October 2015. The sheriff having resumed consideration of the cause, finds in fact:
(1) The parties were married at Glasgow on 17 February 1979.
(2) There are no children of the marriage under the age of 16 years.
(3) There were difficulties in the parties’ marriage for a number of years.
(4) On 11 January 2006, the defender attended at her general practitioner and was diagnosed with “domestic stress”. She was prescribed anti-depressants.
(5) The parties ceased cohabiting as husband and wife on 1 March 2006. The defender left the matrimonial home and moved into rented accommodation on 24 March 2006.
(6) In or around April 2006, the pursuer instructed Messrs Philpott Platt Niblett & Wright to draft a Minute of Agreement in relation to financial provisions upon the parties’ separation and divorce.
(7) On 30 April 2006, the defender experienced a panic attack and was briefly hospitalised.
(8) On or around 15 August 2006, having received a draft Minute of Agreement from the pursuer’s solicitors, the defender instructed Mr Herd of Messrs McManus Campbell & Pottle to act on her behalf. The defender advised Mr Herd that she was unhappy with the terms of the draft Minute of Agreement, as no account had been taken of the pursuer’s pension or endowment policies, one of which had been in force for many years (item 6/13/89 of process). By letter dated 15 August 2006, addressed to the pursuer’s solicitors (item 6/13/88 of process), Mr Herd rejected the terms of the draft Minute of Agreement on behalf of the defender. Mr Herd sought full disclosure of the pursuer’s assets and in particular, valuations of the pursuer’s pension rights.
(9) In or around October 2006, having left her rented accommodation, for a period of approximately six weeks, the defender resided with a work colleague with whom she had developed a relationship. Thereafter, she resided with her mother and her daughter for brief periods.
(10) On 22 November 2006, the pursuer’s solicitors wrote to Mr Herd advising that they were obtaining valuations of the pursuer’s pension rights and noting that the pursuer had indicated to them that “his wife has spoken to him direct and said that she was not interested in his pension fund holding” (item 6/13/85 of process). On the same date, the pursuer’s solicitors wrote to Guardian Financial Services Plc, Axa Sun Life Plc, Scottish Widows Plc and Sun Life Financial of Canada, seeking valuations of various policies as at 1 March 2006 (items 5/5/19-5/5/22 of process).
(11) On 28 November 2006, Mr Herd wrote to the pursuer’s solicitors noting:
“We are raising the question of the pension position with our client but we would be advising her that she should obtain details of any pensions to which your client is entitled as these are quite clearly matrimonial property and falls to be taken into account in any such calculation” (item 6/13/84 of process).
(12) On the same date, Mr Herd wrote to the defender in the following terms:
“We have had a letter from your husband’s solicitors promising to provide full details of his assets but that have stated you have said to your husband that you were not interested in his pension fund holdings. Please advise us if this is the case. We would advise you that pension funds are matrimonial property and we do feel there may be a considerable amount here to which you would be entitled and you should not come to any decision in this matter until all the information regarding your husband’s finances has been disclosed” (item 6/13/83 of process).
(13) In or around late November or early December, the defender moved back into the matrimonial home.
(14) On 1 December 2006, Mr Herd wrote to the pursuer’s solicitor advising that “our client has stated that she did not agree that she was not interested in your client’s pension fund holdings” (item 6/13/82 of process).
(15) On 11 December 2006, the pursuer’s solicitors again wrote to Mr Herd advising that they were in the process of gathering information from their client (item 6/13/81 of process).
(16) On 14 December 2006, the defender was admitted to hospital having overdosed on prescribed medication and painkillers. She was seen by psychiatric services on 16 December 2006. Upon discharge from hospital, she returned to the matrimonial home.
(17) On 15 December 2006, Mr Herd wrote to the pursuer’s solicitor advising that the defender was anxious to have the matter resolved (item 6/13/80 of process).
(18) On 5 January 2007, Mr Herd wrote to the pursuer’s solicitor stating that:
“We have been writing to you since August of last year requesting disclosure of assets and our client is concerned that your client is deliberately delaying the matter as she is in a very difficult position and has had to obtain temporary accommodation since the split up” (item 6/13/78 of process).
(19) This letter crossed with a letter issued by the pursuer’s solicitors of the same date. Under cover of their letter of 5 January 2007, the pursuer’s solicitors provided Mr Herd with copies of valuations of two of the pursuer’s pension policies, namely, a policy with Scottish Widows (obtained on 28 November 2006) and a policy with Guardian Financial Services (obtained on 30 November 2006) both of which had been provided by the financial institutions directly to the pursuer’s solicitors. The pursuer’s solicitors advised that they were awaiting valuations in respect of two further pension policies. The pursuer’s solicitors advised that the pursuer was willing to offer the sum of £55,000 to the defender in respect of her financial claim upon divorce (item 6/13/71 of process).
(20) By letter dated 8 January 2007, Mr Herd wrote to the pursuer’s solicitor in the following terms:
“We are obtaining our client’s instructions but before our client can reach an informed decision we would require a valuation from Axa and Sun Life. The house forms a major part of the assets in this case and we feel it might be expedient for a valuation to be obtained” (item 6/13/70 of process).
(21) On 8 January 2007, Mr Herd wrote to the defender with a copy of the letter he had issued to the pursuer’s solicitor of the same date and inviting her to arrange an appointment to discuss the position with him (item 6/13/69 of process).
(22) On 10 January 2007, the pursuer’s solicitors wrote to Mr Herd in the following terms:
“We understand that the parties have been in discussion with [sic] other and we understand that your client is now willing to accept a final settlement figure of £55,000 for the house and £5,000 for the contents and on that basis would not seek any further financial provision from our client. We are instructed to put this proposal to you” (item 6/13/65 of process).
(23) On 12 January 2007, Mr Herd wrote to the defender in the following terms:
“We refer to our telephone conversation with you when you advised us that you wished to accept the offer of £60,000 in full settlement of the sum due by your husband on the breakdown of your marriage.
We have to repeat the advice we gave to you on the telephone that we think you are entitled to a greater sum as all the information regarding your husband’s assets has not yet been disclosed to us. You did state that you were aware of this but the circumstances were such that you did not wish the matter to go on any longer because of the disharmony it was causing. We accordingly have advised your husband’s solicitors.” (item 6/13/64 of process).
(24) On the same date, Mr Herd wrote to the pursuer’s solicitors stating that he had discussed matters with the defender, noting that:
“She has decided because of the situation here that she will accept £60,000 in full and final settlement of her claims on separation from her husband. It is essential however that this sum is produced quickly and settlement would need to be effected at latest by the end of February” (item 6/13/66 of process).
(25) On 16 January 2007, the pursuer’s solicitors sent a Minute of Agreement to Mr Herd for execution.
(26) On 18 January 2007, the defender’s solicitors wrote to the pursuer in the following terms:
“We have received from your husband’s solicitors a separation agreement for signature by you dealing with the financial aspects of your marriage. We have to repeat to you that we cannot recommend that you sign this agreement and if you decide to go ahead and sign it then this is done against our specific advice.
Again, we would make the points that there has been no independent valuation of the property at Yokermill Road, there is evidence that, and we have seen certain figures that, your husband has pension schemes and you would be entitled to make a claim on these. There are also two joint endowment policies which are being taken over by Mr Anderson. One of these policies at least has a surrender value but figures have not been produced for the other policy or from Mr Anderson’s second pension scheme.
In these circumstances, we repeat, we cannot advise that the figure proposed in settlement of all your rights under the Family Law (Scotland) Act is fair, and if you decide to go ahead and accept the sum and sign the agreement you are giving up your right to any claim in these other assets in the future.
We have already advised you in detail of our views on the matter and you advised us that you do wish to settle on this basis …
In view of the terms of Clause 12 of the Agreement regarding legal advice, where you acknowledge that you have been advised and that the terms are considered by you fair and reasonable, we have to advise you that we have advised you not to accept these terms and that we would not consider them necessarily fair and reasonable in view of the information which is only partially available.
We are enclosing this letter in duplicate to you explaining our views as to why you should not proceed and we shall be obliged if you will sign the duplicate copy and return it to us together with the signed Minute of Agreement in the accompanying stamped addressed envelope provided”. (item 6/13/61 of process).
(27) The defender signed the Minute of Agreement and duplicate letter from Mr Herd dated 18 January 2007. In doing so, the defender acknowledged that she was acting contrary to the advice of her solicitor. Mr Herd acknowledged receipt of the signed duplicate letter on 8 February 2007 (item 6/13/53 of process).
(28) By letter dated 6 March 2007, Mr Herd sent a cheque to the defender in the sum of £59,510, being the agreed sums in terms of the Minute of Agreement under deduction of his firm’s fees (item 6/13/35 of process).
(29) In or around March 2007, the defender left the matrimonial home.
(30) By letter dated 14 March 2007, Mr Herd provided the defender with a photocopy of the extract registered Minute of Agreement.
(31) Clause 2 of the Minute of Agreement (“the Agreement”) signed by the defender on 5 February 2007 and by the pursuer on 21 February 2007 and registered in the Books of Council and Session on 23 February 2007 provides as follows:
“Mr Anderson will keep his pension funds and Mrs Anderson will keep her personal pension funds. For the avoidance of doubt, neither will make a claim upon either party’s occupational pension funds in the event of divorce proceedings being raised by either party”.
(32) In terms of Clause 4 of the Agreement, the parties agreed that the pursuer would pay to the defender a capital sum of £60,000. Clause 4 provides that “said payment includes any claim to which the pursuer may have in respect of financial provision or in connection with any of the assets of the marriage”. In terms of Clause 5 of the Agreement, the defender retained a Fiat Brava motor vehicle. In terms of Clause 6 of the Agreement, the pursuer was entitled to retain the furniture and plenishings contained in the matrimonial home. Clause 7 of the Agreement provides as follows:
“DISCHARGE OF FUTURE CLAIMS
Subject to the foregoing provisions of this Agreement, both parties renounce and discharge all and any rights they have or may have against the other or against the executors and assignees of the other, now and in all time coming including, with prejudice to the foregoing generality, any claim in terms of the Divorce (Scotland) Act 1976 or any re-enactment thereof, or in terms of the Family Law (Scotland) Act 1985 or any re-enactment thereof or any other relevant legislation and in particular to any capital sum, property transfer, pension sharing or e-marking orders, aliment for him or herself or periodic allowance of whatever nature whether under common law or statute, either on divorce or death”.
Clause 12 of the Agreement provides as follows:
“The parties acknowledge that in reaching the terms of this Agreement we have had the opportunity and benefit of separate legal advice and further they acknowledge that having regarding to the whole circumstances prevailing at the date of separation and as at the date or dates hereof said terms of settlement are fair and reasonable”.
(33) In 2013, the pursuer applied to Glasgow Sheriff Court for a simplified divorce. The defender objected to that application on the basis that she wished to challenge the terms of the Minute of Agreement entered into between the parties. The present proceedings were raised by the pursuer in November 2013.
(34) Between the date of execution of the Agreement in 2007 and the presentation of the application for a simplified divorce by the pursuer in 2013, the defender did not intimate or assert any claim upon, or entitlement to, a share of the pursuer’s pension rights.
(35) At the date of separation, the matrimonial property consisted of the following:
(a) The matrimonial home in Glasgow. The property has retrospectively been valued at £130,000 and had an outstanding mortgage in the sum of £35,814.93.
(b) The pursuer’s Aegon Pension Policy, valued at £9,134.42.
(c) The pursuer’s Scottish Widow’s Pension Policy, valued at £7,484.79.
(d) The pursuer’s Scottish Widow’s Pension, valued at £3,231.64.
(e) The pursuer’s Sun Life Financial of Canada Pension, valued at £12,417.44.
(f) The pursuer’s Sun Life Financial of Canada Pension, valued at £509.78.
(g) The pursuer’s Sun Life Financial Pension, valued at £4,443.09.
(h) The pursuer’s Sun Life Financial of Canada pension, value at £13,843.38.
(i) The parties’ Axia endowment policy, surrendered for £4,808.96.
(j) The parties’ Guardian Royal endowment, surrendered for £7,828.97.
(k) The defender’s Fiat Brava motor vehicle valued at £1,975.
(l) The defender’s SERPS pension valued at £2,268.83.
(m) The funds held in the parties’ joint account, being £2,229.62.
(n) The contents of the matrimonial home, valued at between £3,000 and £1,000.
FINDINGS IN FACT AND LAW:
(1) The relevant date for the purposes of section 10(3) of the Family Law (Scotland) Act 1985 is 1 March 2006.
(2) In the event of the net value of the parties’ matrimonial property at the relevant date having been shared equally between the parties, the defender would have received between £19,200 and £18,200 more than she received by operation of the terms of the Agreement.
(3) The pursuer did not subject the defender to unfair or improper pressure to enter into the Agreement. The pursuer did not take any unfair advantage of the defender.
(4) There was no verbal agreement between the parties to the effect that the defender’s entitlement to a share of the pursuer’s pension rights would be distributed to the children of the marriage.
FINDINGS IN LAW:
(1) The parties’ marriage has broken down irretrievably as established by the parties’ non-cohabitation for a continuous period of two years or more.
(2) The Agreement entered into by the parties was fair and reasonable at the time it was entered into.
ACCORDINGLY, (1) Sustains the first plea-in-law for the pursuer; (2) Repels the first and second pleas-in-law for the defender; (3) Reserves the issue of expenses meantime and appoints parties to be heard thereon, on a date to be hereafter assigned.
SHERIFF
NOTE:
Introduction
[1] In this action, the pursuer seeks decree of divorce on the grounds that the marriage has broken down irretrievably. The defender seeks an order under section 16 of the Family Law (Scotland) Act 1985 (“the 1985 Act”) varying the capital sum due to the defender in terms of clause 4 of a Minute of Agreement between the parties dated 5 and 21 February 2007 and registered in the Books of Council and Session on 23 February 2007 (“the Agreement”). The defender seeks an order for payment of £20,020.44 being the balance said to be due, in the event that clause 4 of the Agreement is so varied. The defender also seeks an order for delivery of her mobile phone.
[2] The proof called before me on 26 February 2015 when I refused a motion to discharge the diet. In light of the nature of the orders sought, the defender led at the proof. The parties’ agents helpfully entered into a Joint Minute which dealt in large measure with the value of the matrimonial assets as at the relevant date. It also dealt with certain elements of the defender’s medical history. Ms McIntosh acted for the pursuer. Mr Thompson acted for the defender.
[3] During the first day of the proof, I asked Mr Thompson whether evidence would be led in relation to the legal advice received by the defender at the time of the negotiation and execution of the Agreement. Mr Thompson explained that the defender’s solicitor, Mr Herd, had retired from practice and that the file had not been located. During the course of proof, the file had been retrieved and its contents lodged as the Fifth Inventory of Productions for the defender. A Joint Minute of Agreement was lodged in terms of which the parties agreed that the Fifth Inventory of Productions for the defender was a copy of all remaining parts of the defender’s agent’s file, and that there were no file notes relating to meetings or attendances kept out with that file, as far as Mr Herd was concerned. I allowed the defender to be recalled and examined in relation to the contents of the file.
[4] I heard evidence and submissions over 5 days, namely 26 February, 2 March, 30 March and 1 May 2015. Having heard submission on 28 May 2015, I made avizandum.
The evidence
[5] The defender led at the proof. For the defender, I heard evidence from the defender, Maureen McGhee (the defender’s sister), Edna McDonald (a close friend of the defender) and Dr Graeme Bhatti (a Consultant Psychiatrist).
[6] The pursuer gave evidence. No further witnesses were called for the pursuer.
The defender, Catherine Anne McAllister or Anderson
[7] The defender is currently unemployed and in receipt of state benefits. She spoke to suffering from a number of physical ailments, diagnosed after she separated from the pursuer, including osteoarthritis and fibromyalgia. She has had two knee replacements. In particular, she spoke to the symptoms of fibromyalgia experienced by her, including fatigue, pain and memory loss. She explained that she considered that she was suffering from these symptoms during the time she lived with the pursuer.
[8] The defender spoke to her marriage to the pursuer. She spoke to being subjected to verbal abuse by the pursuer whilst he was under the influence of alcohol. She spoke to the deterioration of their relationship. She described the circumstances in which she left the matrimonial home on a number of occasions during the years leading to her final separation from the pursuer. She spoke to being diagnosed as suffering from domestic stress in January 2006 and to feeling under constant pressure to reconcile with the pursuer between November 2005 and March 2006. She spoke to leaving the matrimonial home in March 2006 to move into rental accommodation; to suffering a panic attack whilst at work in May 2006; to moving in with a work colleague, referred to as “Louise” with whom she had developed an intimate relationship in October 2006 and, upon the breakdown of that relationship, to residing with her mother and daughter. She spoke to the circumstances in which she returned to reside in the matrimonial home in December 2006 and to her attempted suicide later that month.
[9] She spoke to the legal advice she had received in relation to the Agreement. She spoke to being advised by her solicitor that she was entitled to half of the matrimonial assets, including the value of the pursuer’s pension rights. She spoke to being unaware of the terms of the Agreement when she signed it. She had no recollection of reading or signing the Agreement. She spoke to her need to leave the matrimonial home and her need for a capital sum to allow her to purchase alternative accommodation. She spoke to the terms of a verbal agreement between herself and the pursuer whereby the pursuer had agreed that “half of the pensions would go to the children”.
Dr Graeme Bhatti
[10] Dr Graeme Bhatti is a consultant psychiatrist. Dr Bhatti had been instructed to provide a report on the defender’s mental health when she entered into the Agreement. He spoke to the contents of that report (item 6/4/1 of process). In order to complete his report, he was provided with the defender’s partial medical records and he met with her on 4 December 2014, for a period of one hour. In his report, Dr Bhatti concluded that the defender had no significant psychiatric history prior to her difficulties in 2006. He concluded that on a balance of probabilities, the defender suffered from a mental disorder, namely, a moderate depressive illness in late 2006 and early 2007. He spoke to there being an established link between depressive illness and difficulties with concentration and memory. He did not believe, however, that a moderate depressive illness would result in the defender being unaware of the decisions she made. He found no evidence of any significant cognitive impairment. He was of the opinion that the defender’s decisions would have been affected by her illness and if she felt under great pressure, her scrutiny of any agreement and the care with which she may have considered decisions would have been detrimentally affected. He explained that he would not expect a moderate depressive illness to affect one’s basic understanding of facts, but it would impinge upon one’s ability to make complex decisions, one’s attention to detail, and one’s ability to weigh up pros and cons.
[11] He was asked during cross-examination whether the defender’s attempted suicide would have had an effect upon her decision making process. He explained that it would have had no particular effect, it was simply a reflection of her state of mind at that particular time. He spoke to the possibility that the defender was, at the relevant time, making less logical decisions, however, he stated that this was speculation on his part. In short, Dr Bhatti explained that he was of the view that the defender was able to make a conscious decision but her ability to make a good decision may or may not have been affected by her moderate depressive illness. In his view, it was more likely, on a balance of probabilities, that her ability to make a good decision was so affected. He did, however, explain that the symptoms of those suffering from a moderate depressive illness differed from person to person.
Maureen McGhee
[12] Maureen McGhee is the defender’s sister. She spoke to the deterioration in the parties’ relationship after the pursuer became a taxi driver and consequently had less time to spend with the defender and their children. There was no incident that she could recall as being the trigger for the breakdown in the relationship. She spoke to attending a meeting with the defender and her solicitor, and to the defender being very stressed and harassed at that time, in contrast to her normal calm and organised manner. She spoke to being present when the defender was advised by her solicitor to await further pension information. She spoke to discussing the defender’s entitlement to a share of the pursuer’s pension rights, with the defender. She confirmed that the defender was aware of her entitlement. She spoke to advising the defender to be patient until the required information was obtained by her solicitor. She spoke to the defender finding the situation “unbearable”. She spoke to the defender feeling under pressure at the pursuer’s constant attempts to reconcile. She confirmed, however, that she had never personally seen nor heard any of those attempts at reconciliation.
[13] She confirmed that it was her understanding that the defender was acting contrary to her solicitor’s advice in accepting the terms of the Agreement. She spoke to the defender being more settled and less stressed after she had obtained a capital sum from the pursuer and had purchased her own property.
Edna McDonald
[14] Edna McDonald is a close friend of the defender. She spoke to the deteriorating relationship between the pursuer and the defender. She was of the view that alcohol played a part in the breakdown of the relationship. She spoke to being told by the defender that after her return to the matrimonial home in December 2006, the pursuer was not treating the defender well, would criticise her, would not support her and did not give her space; he wished to reconcile. She did not attend any meetings with the defender’s solicitor, but spoke to the defender being “at the end of her tether” during the financial negotiations. She spoke to being told by the defender that she did not want a share of the pursuer’s pension rights; she simply wanted a half share of the value of the house and that was her priority. She spoke to discussing the defender’s entitlement to the pursuer’s pension rights and being advised by the defender that she could not think about that. She spoke to being told by the defender that she would be happy for the children to receive a share of the pensions. She spoke to advising the defender to be sure she was doing the right thing. She spoke to the defender becoming unrecognisible between 2006 and 2007. She described her as not making rational decisions and not functioning properly.
The pursuer – Ian Anderson
[15] The pursuer spoke to the defender leaving the matrimonial home on 4 or 5 occasions in the last 10 years of their relationship; she would reside with her mother for a few days. The parties would, on each occasion, reconcile. He did not recognise the defender’s description of him as selfish or of his conduct as verbally abusive. He denied any alcohol addiction issues and spoke to being unable to drink excessively because of his work as a taxi driver. He described frequent arguments between himself and the defender. He was of the view that the marriage had broken down because the defender had “fallen out of love”.
[16] He spoke to the circumstances in which the defender left the matrimonial home in March 2006, to her return in December 2006, to her attempted suicide and to his attempts to reconcile with her. He did not accept that he pressurised the defender to reconcile or that he pressurised her to enter into the Agreement.
[17] He spoke to instructing Messrs Philpott Platt Niblett & Wright to act on his behalf, in relation to resolving the financial issues arising from the parties’ separation. He spoke to the defender’s rejection of his first offer of payment of a capital sum. He spoke to his instruction to his solicitors to obtain a valuation of his pension rights. He spoke to being advised by the defender that she just wanted a capital sum and had no interest in his pensions. He denied any agreement between the parties that the children of the marriage would receive half of the value of his pension rights. He did not accept that he had sought to delay any aspect of the financial settlement between the parties in order to encourage the defender to accept less than she was entitled to. He spoke to re-mortgaging the matrimonial home and to obtaining a loan from his mother in order to pay the defender the agreed sum of £60,000.
Submissions
[18] I am grateful to Mr Thompson and Ms McIntosh for providing their written submissions which were of considerable assistance. These are available with process and I will not rehearse them ad longum. There was no dispute between the parties as to the applicable law. In particular, both parties referred me to the factors to be considered when determining an application for an order under section 16 of the 1985 Act, by reference to the judgment of Lord Weir in Gillon v Gillon (No 3) 1995 SLT 678.
[19] On behalf of the defender, Mr Thompson referred to cases in which the courts had granted orders under section 16 of the 1985 Act (namely Short v Short 1994 GWD 21-1300; McKay v McKay 2006 SLT (Sh Ct) 149 and MacDonald v MacDonald 2009 Fam LR 131).
[20] Mr Thompson invited me to find the defender’s evidence reliable and credible. He accepted that parts of her evidence had been vague, but argued that she had been open and honest. He referred to the evidence of Dr Bhatti who had spoken to the defender suffering from mental health difficulties which would have affected her decision making. Ms McGhee and Ms McDonald had spoken to the defender having been abused and being subjected to pressure by the pursuer.
[21] With reference to Gillon v Gillon (No 3) supra, I was invited to consider in particular the following matters: (a) that the defender had received an unequal share of the matrimonial assets, around 40%; (b) that the defender had been unaware of the extent of her entitlement to the pursuer’s pension rights; (c) that the defender’s mental health difficulties had affected her decision making; (d) that the pursuer had subjected the defender to abuse and pressure; (e) that the pursuer had failed to disclose his assets or at least had materially delayed in doing so; and (f) that the defender had understood the Agreement to incorporate a verbal agreement between the parties to the effect that the parties’ children would receive the defender’s share in the pursuer’s pension rights. Mr Thompson submitted that the circumstances of the present case were in many respects, analogous to those in MacDonald v MacDonald, supra.
[22] On behalf of the pursuer, Ms McIntosh submitted that the defender’s evidence was lacking in credibility and reliability and that she presented with a selective memory. In particular, her evidence with regards to the nature and extent of the legal advice she had received was contradictory. Mr Herd had not been called as a witness. Ms McIntosh submitted that the defender had refused to sign a mandate allowing her to obtain a statement from him. She submitted that it was highly unlikely that Mr Herd would have allowed the defender to sign the Agreement if he had been in any doubt as to whether the defender had read and understood it.
[23] Ms McIntosh submitted that the Agreement had been fair and reasonable at the time it was entered into for the following reasons: (a) the defender was legally represented and had received sound legal advice; (b) both parties took a risk in signing the Agreement as neither was in receipt of valuation information for all of the matrimonial assets; (c) the defender was aware of the extent, if not the value of the matrimonial assets; (d) there was no evidence that the defender’s decision in relation to the execution of the Agreement had in fact been detrimentally affected by her poor mental health; and (e) there was no evidence that the pursuer had taken unfair advantage of the defender’s position. I was invited in particular to consider the present case in light of the decision in Inglis v Inglis 1999 SLT (Sh Ct) 59.
Discussion and the applicable test
[24] Prior to the enactment of the 1985 Act, parties to an agreement on the financial provisions to be made on divorce could not seek to invoke the jurisdiction of the court to set aside that agreement, in the absence of evidence of error, undue influence, fraud or misrepresentation or other similar vitiating circumstances. While preserving the common law position, section 16 of the 1985 Act extends the court’s power to intervene and set aside or vary such agreements in limited circumstances, reflecting the delicate balance between freedom of contract on the one hand, and the need to protect the disadvantaged party, on the other. Section 16 of the 1985 Act provides as follows:
“(1) Where the parties to a marriage or the partners in a civil partnership have entered into an agreement as to financial provision to be made on divorce or on dissolution of the civil partnership, the court may make an order setting aside or varying—
(a) any term of the agreement relating to a periodical allowance where the agreement expressly provides for the subsequent setting aside or variation by the court of that term; or
(b) the agreement or any term of it where the agreement was not fair and reasonable at the time it was entered into.”
[25] There are no legislative guidelines as to the factors which are to be considered in reaching a view upon whether an agreement was fair and reasonable at the time it was entered into; it is very much an issue to be determined by reference to the facts and circumstances of each case. In Gillon v Gillon (No 3) supra, having considered the judgments in Edgar v Edgar [1980] 1 WLR 1410, McAfee v McAfee 1990 SCLR 805 and Gillon v Gillon (No 1) 1994 SLT 978, Lord Weir set out a number of principles to be applied. Having considered Lord Weir’s judgment and its application in subsequent cases, I summarise the principles to which the court must have regard when exercising its power to set aside or vary an agreement under section 16 of the 1985 Act, as follows:
(a) the onus of establishing, on a balance of probabilities, that the agreement is unfair and unreasonable, rests upon the party so asserting;
(b) it is necessary to examine the agreement from the point of view of both fairness and reasonableness (Gillon v Gillon (No 3) supra at page 681); what is fair and reasonable requires to considered objectively – from the point of view of the objective bystander examining the circumstances prevailing at the time (Gillon v Gillon (No 1) 1994 SLT 978 per Lord Penrose at page 982);
(c) such examination must relate to all of the relevant circumstances leading up to and prevailing at the time of the execution of the agreement, including amongst other things (i) the nature and quality of any legal advice given to either party (Gillon v Gillon (No 3), supra at page 681); (ii) the extent of the knowledge of the parties of their respective entitlements (Worth v Worth 1994 SLT (Sh Ct) 54); (iii) the extent to which a party has freely chosen to forgo a valuable claim (Anderson v Anderson 1991 SLT 11 per Sheriff Henderson at page 13); and (iv) whether by doing so that party has secured an immediate short term goal, such as the departure of an unwanted spouse from the matrimonial home (Gillon v Gillon (No. 3), supra and Inglis v Inglis, supra per Sheriff Farrell at page 62), or immediate access to a capital sum;
(d) evidence that some unfair advantage was taken by one party of the other by reason of the circumstances prevailing at the time of negotiations may have a cogent bearing on the determination of the issue (Gillon v Gillon (No 3), supra at page 681); unfair advantage may take the form inter alia of unfair and improper pressure or coercion to enter into the agreement (MacDonald v MacDonald and Inglis v Inglis), of non-disclosure of matrimonial property (McKay v McKay) or of the withholding of relevant information such as the value of matrimonial assets (Gillon v Gillon (No.1) supra, at page 983);
(e) the court should not be unduly ready to overturn agreements validly entered into (Gillon v Gillon (No 3), supra at page 681); equally however, the court should not construe section 16 of the 1985 Act so narrowly as to deny a party the right given to him or her by Parliament, to have an unfair or unreasonable agreement set aside (Clarkson v Clarkson 2008 SLT2);
(f) the fact that it transpires that an agreement has led to an unequal and possibly a very unequal division of assets does not by itself necessarily give rise to any inference of unfairness and unreasonableness; it would be over simplistic to approach the matter purely as an arithmetic exercise (Gillon v Gillon (No 3), supra at page 681).
[26] The relevance of the state of mind of the party seeking to have the agreement varied or set aside has been sharply focussed in the present case. The breakdown of a relationship is often an anxious, unsettling and painful experience. It can leave one party feeling vulnerable, suffering from poor mental health and impatient to resolve financial issues, particularly where the relationship has become acrimonious, and parties continue to reside in the same property. Does this vulnerability or poor state of mind give rise to a necessary inference of unfairness or unreasonableness for the purposes of section 16 of the 1985 Act? In my judgment, in the absence of other relevant circumstances, it does not. To hold otherwise would amount to an unwarranted interference with the freedom of the parties to settle their affairs in a manner, which, for their own reasons, they have regarded as acceptable. The decision of one party may be a poor one, however, if it is one which is freely made, the court should not, in my judgment, intervene to compensate a party, who with the benefit of hindsight, would have made a different, more favourable decision. Those other relevant circumstances to which I have referred may include evidence of poor mental health affecting cognitive ability, calling into question the capacity of one party to enter into an agreement; evidence of one spouse taking unfair advantage of the other’s vulnerability to secure a more favourable financial outcome; evidence of a lack of, or poor, legal advice; or evidence of an unjustifiable and very unequal division of assets.
[27] In Gillon v Gillon (No 3) supra, whilst I accept that there was no evidence that the pursuer suffered from any mental disorder, Lord Weir noted that the pursuer’s frame of mind made her vulnerable to accepting an early settlement. He noted her impatience and anxiety to settle matters in the full knowledge that she had a claim upon her husband’s pension rights, having obtained legal advice. He was not persuaded that the agreement was unfair and unreasonable.
[28] In Short v Short supra, the pursuer had been diagnosed as suffering from reactive depressive anxiety to such a degree that it amounted to a nervous breakdown. However, this was one of a number of factors taken into account by Sheriff Farrell in setting aside the minute of agreement. In particular, he took account of the poor legal advice received by the pursuer. Evidence was also led that the defender had encumbered the matrimonial home without the knowledge of the pursuer, and that the defender had applied pressure upon the pursuer to agree to a sale of the matrimonial home. It is not, however, immediately obvious from the case report what weight, if any, the Sheriff attached to this evidence.
[29] In MacDonald v McDonald supra, the pursuer had a long standing medical history of anxiety and stress and was anxious and apprehensive at the time of signing the agreement. However, there was also clear evidence of the defender’s coercion of the pursuer and his demands that she sign the agreement. The defender had been convicted of breach of the peace on two occasions in relation to charges involving the pursuer as complainer and the pursuer had obtained a non-molestation interim interdict against him. The defender had also failed to disclose assets, liabilities and accounts thereby frustrating the pursuer’s solicitor’s role in properly advising her of her entitlement.
[30] These cases, in my opinion, underline the need to view matters broadly, and to consider all of the prevailing circumstances.
Reliability and Credibility
[31] Before turning to the application of the law to the facts of this case, it is necessary for me to comment upon matters relating to the reliability and credibility of the witnesses.
[32] I found the pursuer to be a defensive, but otherwise honest and straight-talking witness. His account of events remained consistent under cross examination. While there were a number of matters in relation to which he stated he had no recollection (such as whether he had obtained a valuation of the matrimonial home prior to obtaining a re-mortgage or the extent of the cash he may have held in the matrimonial home), that did not, in my view, materially affect the weight to be attached to his evidence. He appeared, to some degree, to downplay the defender’s anxiety at the relevant time, however, it appeared that he was genuinely unaware that she may be suffering from a moderate depressive illness.
[33] I found the defender’s evidence confused, contradictory and in relation to a number of significant matters, unreliable. She had a poor recollection of events. Most notable were the changes in her evidence regarding the legal advice she had received, upon which I comment further below. She also tended to downplay the possibility that her anxiety, stress and depression might be related, in part, to the breakdown of her relationship with Louise. Her position was at odds with the entries in a number of medical records in which the defender was noted as having advised medical personnel of her anguish at the breakdown of that relationship. Her evidence regarding the abusive conduct to which she had allegedly been subjected was general and vague. I have paid due regard to Dr Bhatti’s evidence regarding the possibility that the defender suffered from poor concentration and memory at the relevant time, however, I regret that I have required to treat the defender’s evidence with considerable caution. Where her evidence was contradicted by that of other witnesses or by the content of any of the productions lodged, I have preferred the content of those productions and the evidence of those witnesses.
[34] I found Ms McGhee to be an honest and reliable witness. She was even-handed in her evidence and did not appear to be simply asserting a position on behalf of the defender. Her evidence, however, in relation to the treatment of the defender by the pursuer was based entirely upon information imparted to her by the defender. I found Ms McDonald to be rather less impartial. I noted her eagerness to comment upon the pursuer’s mistreatment of the defender, but her inability to provide any meaningful details of that mistreatment. She was able to talk to witnessing the pursuer under the influence of alcohol on a few occasions; however, she had little or no contact with the pursuer around the relevant time, namely late 2006 and early 2007. She was able to talk about the defender’s demeanour and general state of mind; however, I noted the reluctance with which, during cross-examination, she provided information in relation to the defender’s relationship with Louise and the effect that the breakdown of that relationship had upon her.
[35] I found Dr Bhatti’s evidence to be measured, reliable and credible.
The Application of the test in section 16 of the 1985 Act
(a) Was the Agreement unfair and unreasonable at the time it was entered into?
[36] Viewing the matter objectively and having regard to the circumstances prevailing at the time the Agreement was entered into, in my judgment, the pursuer has failed to establish, on a balance of probabilities, that the Agreement was unfair and unreasonable at the time it was entered into. I have reached that decision having regard to all of the prevailing circumstances, and, in particular, having regard to the following factors.
(b) The defender’s state of mind
[37] It was a matter of agreement that during the course of 2006, the defender was diagnosed with “domestic stress” and later, with depression; that she suffered a panic attack in May 2006 and that she was admitted to hospital having taken an overdose in December 2006. There was conflicting evidence with regards to the underlying cause of the defender’s illness. The defender attributed it to the breakdown of her relationship with the pursuer and the pressures he placed upon her which she described as “mental torture”. The pursuer attributed her illness to the breakdown of her relationship with Louise, to whom she had sent text messages immediately before taking an overdose and with whom she had hoped to reconcile. Ms McGhee spoke to the defender’s poor mental health being attributable to the breakdown of her relationship with the pursuer and to her feeling upset that she “had caused so much hurt to [the pursuer] and the rest of the family”.
[38] It is not necessary for me to form a view as to the cause of the defender’s illness. I accept Dr Bhatti’s evidence that the defender was suffering from a moderate depressive illness in late 2006 and early 2007. This may have affected her concentration and memory. She was more likely to make poor decisions. Her scrutiny of any agreement and the care with which she may have considered decisions would have been detrimentally affected, although Dr Bhatti was not able to comment upon to the extent to which that might have been the case. It was Dr Bhatti’s view that the defender would have been aware of the decisions she was making. He found no evidence in her medical records or during his examination of her, of any significant cognitive impairment.
[39] For the reasons I have set out above, however, the fact that the defender suffered from a moderate depressive illness, cannot, in my judgment, be determinative of the question of whether the Agreement was fair and reasonable at the time it was entered into. It is one of a number of factors to be considered.
(c) The nature and quality of the legal advice received by the defender, her knowledge of her entitlement and the reasons for her execution of the Agreement
[40] The defender’s solicitor, Mr Herd, was not cited by the defender to give evidence. I was advised by Ms McIntosh that the defender had refused to sign a mandate authorising Mr Herd to provide a statement to Ms McIntosh. Mr Herd’s file was produced during the course of the proof, necessitating the recall of the defender. In a case such as this, where one of the factors which the court requires to take into account is the nature and quality of the legal advice received, that is an unsatisfactory state of affairs.
[41] I am thus required to make an assessment of the nature and quality of the legal advice received by the defender upon the basis of a copy of Mr Herd’s file and on the basis of the defender’s evidence.
[42] The defender’s evidence in relation to the legal advice she received was simply difficult to follow and constantly changing. I was invited by Mr Thompson to infer that the contradictions in the defender’s evidence arose from her eagerness to answer questions when, in fact, the reality was that she remembered very little. He submitted that “no criticism” could be directed at the legal advice given to the defender other than the failure to advise her of the possibility of obtaining an exclusion order. I note however that it is averred that “the defender had intended for the pursuer’s pensions to be taken account of [in the Agreement]” (Statement of Fact 4) and further that:
“[t]he defender recalls discussing the pursuer’s pension and had sought at that time to ensure that her share of the pursuer’s pension would be transferred to the parties grown up children that is not reflected in the Minute of Agreement” (Statement of Fact 1).
These averments were of course drafted without the benefit of examining the content of Mr Herd’s file, and were the focus for a great number of the questions put to the defender.
[43] The defender first spoke to having no recollection of signing the agreement, of reading it, of understanding its terms or of having its terms explained to her. She stated that she only became aware of the terms of the Agreement when she had sought a copy after the pursuer submitted an application for a simplified divorce. She was shocked to read its terms and was adamant that she would never have agreed to sign it.
[44] She then spoke to being advised by Mr Herd that she should await the valuation information in relation to the pursuer’s pension rights before she agreed the terms of the Agreement. She spoke to having advised Mr Herd, initially, that she had wanted half of the value of the house and half of the value of the pursuer’s pension rights. She stated that the process was taking too long, she was finding the situation unbearable and was desperate to leave the matrimonial home. She told Mr Herd that she wanted an immediate capital sum. She then advised Mr Herd that she wanted her half of the value of the pursuer’s pensions to “go to the children”. She stated during cross-examination that Mr Herd had advised her that:
“he would organise that I thought that by the time I signed the Agreement, the lawyer would have sorted that out. I thought that it would be in the Agreement that the children would get my share”.
Her evidence evolved from a position whereby she first suggested she had received poor legal advice and Mr Herd had acted contrary to her instructions, to later accepting that she had acted contrary to his advice. She stated that she had not advised Mr Herd of her poor mental health but that “he would have known” that her health had been affected by the process. She accepted that she had made no further enquiry with Mr Herd between 2007 and 2013 in relation to valuation data because “she had not given the pensions another thought”.
[45] The defender was recalled to give evidence after Mr Herd’s file was produced. The correspondence in that file was put to her. She accepted that she had acted contrary to Mr Herd’s advice. She accepted that there was no reference in any of the correspondence to her desire for a share of the pursuer’s pension rights to be paid to their children. She maintained that this was a verbal agreement between herself and the pursuer. That position was not foreshadowed by any averment on Record. I did not have the benefit of any submissions as to whether, in view of the discharge of claims by both parties set out in the Agreement, and in circumstances where both parties had obtained legal advice, it was relevant for the court to consider the terms of any earlier verbal agreement between the parties, if indeed, one existed in this case.
[46] It is clear, in my judgment, that the defender received sound and proper legal advice. Mr Herd’s correspondence to the defender was careful in its language and perfectly clear in its repeated warnings. It is self-evident from these letters that these warnings were repeated by Mr Herd during a meeting with the defender and by telephone. Indeed, so concerned was Mr Herd in relation to the defender’s haste to secure an immediate capital sum, he requested that she sign and return a letter setting out his advice dated 18 January 2007. The defender duly did so. Standing Dr Bhatti’s opinion that the defender would have been aware of the decisions she was making, it is clear to me that in executing the Agreement before receipt of the valuation data for some of the pursuer’s pension policies, the defender was aware that she was acting contrary to Mr Herd’s advice. She chose to do so.
[47] There is no support in Mr Herd’s file for the positions advanced by the defender, namely (a) that she had advised him to arrange for her share of the pursuer’s pension entitlement to be paid to the children and (b) that he would have been aware of her poor mental health at the time she signed the Agreement. Mr Herd had diligently dispensed clear, comprehensive advice with repeated warnings. In those circumstances, had he been instructed as the defender suggested or had he been aware of the extent of her poor mental health, it is highly unlikely that he would not have carefully noted that information and his advice to the defender. The absence of any such note is telling. There is also no basis, in my judgment, for concluding that Mr Herd ought to have advised the defender of the possibility of obtaining an exclusion order. The absence of any advice in relation to this matter in his file strongly suggests, in my judgment, that he was not told of the extent of the difficulties allegedly faced by the defender in the matrimonial home. Of course, I have not had the benefit of Mr Herd’s evidence in relation to these matters. Standing my assessment of the defender’s evidence, I am not prepared to accept that criticism can be made of the legal advice she received, in this regard.
[48] In my judgment, the defender received sound legal advice, was aware of her entitlement to a share of the pursuer’s pension rights and chose to act contrary to that advice in order to receive an immediate capital sum.
[49] I am also not persuaded that any verbal agreement, of the nature contended for by the defender, existed between the parties. The defender was unable to explain when, where or how such an agreement was reached. I preferred the evidence of the pursuer in relation to this matter.
(d) Did the pursuer take unfair advantage of the defender?
[50] The defender referred repeatedly in her evidence to suffering “mental torture”, abuse and pressure at the hands of the pursuer. On closer examination however, whilst the defender gave evidence that the pursuer would frequently drink alcohol and become argumentative during the 27 years of their marriage (which the pursuer denied), she was unable to provide any specific details of the pursuer’s behaviour around the time of the negotiation and execution of the Agreement, beyond generally describing it as “mental torture” and verbal abuse. This appeared to be limited to the pursuer’s repeated attempts to reconcile and arguments which then followed between them. Indeed, I note that during Dr Bhatti’s assessment of the defender, that is the extent of the pressure noted as spoken to by the defender (item 6/4 of process, page 3). During her evidence, the defender stated that this was a daily occurrence, whilst the pursuer maintained that he had sought a reconciliation on 5 or 6 occasions after she returned to the matrimonial home in December 2006.
[51] I preferred the pursuer’s evidence in relation to this matter. I note Dr Bhatti’s evidence that it was possible that, in light of her poor state of mind, the defender had a negative thought process and so may have perceived events in a negative way. Under cross-examination, Ms McGhee described the pursuer as a “helpful individual who is compassionate”. I further note that the defender’s description of the pursuer’s conduct was also inconsistent with her evidence (and that of Ms McGhee), to the effect that her family had wanted her to return to the matrimonial home to reside with the pursuer after her attempted suicide in December 2006, because they felt that it was a “safe” place for her.
[52] I have no doubt that the defender felt pressured by the pursuer’s attempts to reconcile, particularly in light of her poor mental health and the circumstances she faced at the time, however, I am not satisfied that the pursuer’s attempts to reconcile amounted to anything more calculated or sinister, still less that they amounted to abuse or “mental torture”.
[53] I am also not persuaded that the pursuer had pressurised the defender to sign the Agreement or to leave the matrimonial home. There was scant evidence to support such a conclusion. Indeed, it was apparent that there had been a degree of negotiation between the parties, the defender having rejected an earlier proposal by the pursuer to pay the defender £55,000.
[54] I have also considered whether there had been a deliberate attempt on the part of the pursuer to withhold or unreasonably delay the disclosure of the value of his pension rights, in order to take advantage of the defender’s vulnerability. On a balance of probabilities, I am not persuaded that there was.
[55] I note that Ms McGhee was asked during cross-examination whether the pursuer was someone who would take advantage of another. She replied “I don’t think he would go out of his way to take advantage of someone”. Under re-examination, however, she stated that she was of the view that the pursuer would be keen to give away as little as possible of his finances.
[56] It is clear that the pursuer provided his solicitors with the details they required to enable them to obtain information regarding his pension rights. It is clear his solicitors sought valuations in November 2006. It was put to the pursuer that he had been in possession of statements in respect of some of his policies in 2006 (items 5/4/8-11 of process) and that he could and ought to have provided these to his solicitors during the negotiations in relation to the Agreement. It was the pursuer’s position that he provided his solicitors with the information they requested, and that he was not aware of the significance of these documents. I note that each of these documents bears to be an Annual Plan Statement of the pursuer’s Sun Life Financial of Canada Pension Plan. These are not documents which, in any event, bear to show the value of those plans as at the relevant date. The pursuer struck me as an individual who had little knowledge of financial matters (there was ample evidence, for example, that the defender was primarily responsible for banking and organising the parties’ financial affairs). He had left matters in the hands of his solicitor.
[57] The process of obtaining the valuations perhaps took longer than both parties would have wished; however, there is no basis, in my judgment, for concluding that the delay was attributable to inaction, obstructive conduct, or the deliberate withholding of information on the part of the pursuer.
(e) The inequality of the division of matrimonial assets
[58] There has clearly been an unequal division of the matrimonial property in this case. The defender has received approximately 40% of the matrimonial property. The value of the property was a matter of agreement, except in relation to the contents of the matrimonial home and in relation to any cash sums held by the pursuer within the matrimonial home. The pursuer valued the contents at £3,000 and the defender at significantly less. The pursuer maintained that any cash he kept at home represented his takings from taxi fares, which he would use to pay bills. He did not regard these sums as savings or disposal income. I had insufficient information before me to form a concluded view as to what, if any, sums were held within the matrimonial home as at the date of separation. Assuming a valuation of between £3,000 to £1,000 in respect of the contents, the defender has received between £18,200 and £19,200 less than she would have received, had there been an equal division of the matrimonial property.
[59] As noted by Lord Weir in Gillon v Gillon (No.3), if one were to approach this case with hindsight, purely as an arithmetic exercise, it is possible to say that the terms of the Agreement were unreasonable. However, that would be “an oversimplified and illegitimate approach”.
[60] I should add that neither party had obtained a valuation in respect of the matrimonial home. To that extent, both parties had accepted a risk with regards to the calculation of the capital sum to be paid to the defender.
Conclusion
[61] Having considered all of the relevant circumstances prevailing at the time the Agreement was entered into, I am not satisfied that it was unfair and unreasonable. The defender was aware of her claim on the pursuer’s pension rights. Indeed, it was she who had advised her solicitor of the existence of the pursuer’s pension and endowment policies. She had been given the clearest warnings by her solicitor that it was in her best interests to await full disclosure of the value of the pursuer’s pension rights. She chose to ignore that advice, renounce her claim and sign the Agreement. She did so freely, without coercion or undue pressure. She may have made an irrational decision as a result of her poor state of mind; however, she was aware of the consequences of doing so. She did so to obtain swift access to a capital sum to enable her to move out of the matrimonial home and to bring an end to what had been an anxious and unsettling period in her life, as soon as possible. Above all, she wanted a sense of security and peace of mind. The financial disadvantage she would suffer in her desire to attain that security and peace of mind was entirely foreseeable. I have sympathy for the circumstances in which the defender found herself, however, the test set out in section 16 of the 1985 Act has not been met.
Decision
[62] The marriage having broken down irretrievably as established by the parties’ non-cohabitation for a continuous period of more than two years, I shall sustain the pursuer’s first plea in law and grant decree of divorce as first craved.
[63] The Agreement being fair and reasonable at the time it was entered into, I shall repel the defender’s first and second pleas in law.
[64] I will reserve meantime the issue of judicial expenses to be dealt with at a hearing to be assigned in due course. At that hearing, I would also wish to be addressed by the parties in relation to whether any orders in relation to the defender’s third crave, (for which I note there is no corresponding plea-in-law), are necessary. I have noted that the pursuer stated during the course of his evidence that he would voluntarily return the defender’s mobile phone to her, upon conclusion of the proof.