| OUTER HOUSE, COURT OF SESSION [2012] CSOH 21 |
| F102/10 | OPINION OF LORD TYRE in the cause C B Pursuer; against M B Defender: ________________ |
Pursuer: Speir; Sheehan Kelsey Oswald
Defender: Brabender; Morton Fraser
3 February 2012
Introduction
[1] The parties to this action for divorce were married on 1 August 2000. There are two children of the marriage, namely SB, born on 21 November 2002, and EB, born on 27 March 2004. The defender has a son, M, born on 8 June 1992, from a previous relationship. As at the date of the proof the parties, their two children and M all resided at Wishaw. However, it is a matter of agreement by joint minute that although continuing to reside in the same house the parties separated and ceased to live together as husband and wife on 6 January 2010. This was the "relevant date" for the purposes of section 10(3) of the Family Law (Scotland) Act 1985 ("the 1985 Act").
Decree of divorce
[2] The pursuer seeks decree of divorce from the defender on the ground that the marriage has broken down irretrievably as established by the parties' non-cohabitation for a continuous period of one year and the defender's consent to the granting of decree of divorce. I am satisfied on the evidence that the breakdown of the marriage has been established on this basis and I shall grant decree of divorce.
Children of the marriage
[3] Prior to commencement of the proof, the parties lodged a minute recording their agreement that a residence order should be made regulating the arrangements for the residence of the children of the marriage. The terms of that agreement are as follows:
"The parties are agreed that:
1. A residence order be made regulating the arrangements as to with whom, during what periods, the children of the marriage SB, born 21 November 2002, and EB, born 27 March 2004, shall reside.
2. That, during school term time, residence will operate on a two week schedule, commencing Saturday, as follows:
(a) The children shall be collected from the Defender's home by the Pursuer at 3.30pm on Saturday and reside with the Pursuer until they are dropped off at school by him on Wednesday morning;
(b) The children shall be collected from school by the Defender on Wednesday and reside with her until they are collected by the Pursuer from the Defender's home at 5pm on Sunday;
(c) The children shall reside with the Defender from 5pm on Sunday until they are dropped off at school by him on Wednesday morning;
(d) The children shall be collected from school by the Defender on Wednesday and reside with her until 3.30pm the following Saturday.
(e) While they are residing with the Defender, the children shall be collected by the Pursuer from the Defender's home on a Thursday evening at 6.30pm and returned to her home at 8pm for the purposes of the children attending church youth group.
(f) Every fourth Sunday, when the children are residing with the Defender, the children shall be collected by the Pursuer from the Defender's home at 9.15am and returned to her home at 1pm for the purposes of attending church.
3. That during school holidays, the parties will share the care of the children equally.
4. That all alterations to the said residence arrangements will be by mutual agreement between the parties."
[4] I heard very little oral evidence regarding the welfare of the children and having regard to their ages I did not consider it appropriate to carry out my own inquiry into any views which they might wish to express. I did however have before me a very helpful report by Professor Thomas Mackay, Consultant Psychologist, prepared on the defender's instructions, which recommended inter alia that there should be shared care. It was common ground between the parties that I should have regard to the terms of Professor Mackay's report. On the basis of that report I am satisfied, in terms of section 11(7) of the Children (Scotland) Act 1995, that it is better for the two children that an order under section 11(2)(c) be made than that no order be made and that, having regard to the children's welfare as the paramount consideration, an order in the terms agreed between the parties should be made. I shall therefore make an order in the agreed terms.
Financial provision
[5] By the time the action came to proof, the contentious issues between the parties were restricted to financial provision. In terms of section 8(2) of the 1985 Act, the court must make such order, if any, as is justified by the principles set out in section 9(1) of the Act and is reasonable having regard to the resources of the parties. The following principles are relevant to the contentions of the parties in the present case:
(a) the net value of the matrimonial property should be shared fairly between the parties;
(b) fair account should be taken of any economic advantage derived by either party from contributions by the other and of any economic disadvantage suffered by either party in the interests of the other or of the family;
(c) any economic burden of caring for the children of the marriage should be shared fairly between the parties;
(d) a party who has been dependent to a substantial degree on the financial support of the other should be awarded such financial provision as is reasonable to enable him/her to adjust over a period of not more than three years from the date of decree.
Section 10(1) provides that in applying principle (a) above, fair sharing shall be taken to mean equal sharing or in such other proportions as are justified by special circumstances. Section 10(6) provides, without prejudice to the generality of the words in subsection (1), that "special circumstances" may include inter alia the source of the funds or assets used to acquire any of the matrimonial property where these were not derived from the parties' income or efforts during the marriage. It is appropriate to note also at this stage the terms of
- Section 10(5), which provides that the proportion of any rights or interests of either party under a life policy or pension arrangement which is referable to the period of the marriage shall be taken to form part of the matrimonial property; and
- Section 13(2), which precludes an order for a periodical allowance unless the court is satisfied that such an order is justified by one of the foregoing principles and that an order for inter alia payment of a capital sum or transfer of property would be inappropriate or insufficient to satisfy the requirements of section 8(2).
[6] The core dispute is whether, as the pursuer contends, there are special circumstances justifying departure from the presumption of equal sharing of the matrimonial property. Put shortly, the pursuer's contention is that the value of the pool of matrimonial property at the relevant date derived substantially from property held by him prior to marriage, and accordingly that a fair sharing of the net matrimonial property would be an unequal sharing. The defender contends that there should be equal sharing of all matrimonial property except for a proportion of the value of a personal pension, with regard to which she accepts that there are special circumstances justifying an unequal sharing in favour of the pursuer. She also seeks a periodical allowance for a period of three years from the date of divorce. Each party seeks an order for transfer of the other's interest in the property in Wishaw where they currently reside. The pursuer seeks an order for transfer of the defender's interest in a caravan in joint ownership; this is not contested.
Summary of financial history
[7] The financial circumstances of the parties, before and during the marriage, may be summarised as follows.
Pursuer's assets at the date of the marriage
[8] Since 1991 the pursuer has carried on business as a sole trader under the name of Excel Auto Services at 38-40 Belhaven Road, Wishaw. At the time of the marriage the business consisted of the provision of general garage services and the hiring of cars and vans. In addition, the pursuer had a breakdown recovery contract with Strathclyde Police and provided breakdown services on behalf of other organisations including the AA. The business premises at Belhaven Road, together with a workshop building at 109 Caledonian Road, Wishaw which was in poor repair and was used for advertising the business, were acquired by the pursuer prior to the date of the marriage. The assets of the business at that time included various vans for hire, breakdown vehicles, fixtures and fittings, garage stock and sums at credit of bank accounts.
[9] In addition, the pursuer owned an area of land at Netherton Street, Wishaw. Title to this site had initially been taken in name of the pursuer and his father, Mr C H B, in one half pro indiviso shares, but in March 2000 Mr B Snr had conveyed his share to the pursuer without payment. The pursuer explained that the purpose of acquisition of the land had been to re-locate the vehicle hire business there. Planning permission had been sought and granted in May 2000 for the erection on the site of a dwellinghouse and the formation of a vehicle hire/sales centre with a portacabin. However, a difficulty subsequently emerged. Access to the site required to be taken over a narrow strip of land which was in the ownership of North Lanarkshire Council. This "ransom" strip was eventually acquired by the pursuer on 6 August 2004 on payment to the council of the sum of £25,000.
[10] At the time of the marriage the pursuer owned and resided at 20 Kilnwell Quadrant, Motherwell. This had previously been a council-owned property which the pursuer tenanted and which he purchased at a discount from the council in 1997, shortly after having arranged an exchange of houses with another council tenant. After the marriage, the pursuer and the defender lived together at this address. There is an issue as to whether this house was acquired by the defender for use by the parties as a family home, which I discuss below.
[11] Shortly before the date of the marriage, the pursuer instructed the preparation by his accountant of a schedule detailing his personal and business assets, including a valuation of each of these as at 24 July 2000. In addition to the heritable properties which I have already mentioned, the schedule lists as "personal" assets:
- sums at credit of bank accounts;
- stocks and shares;
- the value of a personal pension plan and a with-profits investment plan with Equitable Life Assurance and a pension plan with Co-operative Insurance;
- house furnishings and electrical goods;
- jewellery;
- personalised registration number plates;
- cars
Leaving aside the values attributed to the heritable property at Belhaven Road, Caledonian Road and Netherton Street, the total value of the pursuer's personal assets, according to the schedule, as at 24 July 2000 was £195,763.81.
Defender's assets at the date of the marriage
[12] Between about 1998 and 2000, the defender was in part-time employment as a support worker and duty supervisor in a residential care home operated by Loretto Housing Association. At the time of the parties' marriage she had given up this employment, which included working some night shifts, and was working part-time in the pursuer's business, carrying out administrative work including the hiring of vehicles. She was tenant of a property owned by a housing association and had no assets of significant value.
Property and business transactions during the marriage
[13] After the parties' marriage, the pursuer continued to operate his garage services business as sole trader under the name of Excel Auto Services. However, he terminated his vehicle recovery work. In 2002, for reasons of tax efficiency, he formed a company called Excel Hire Drive Limited to carry on the car and van hire business. This business continues to be carried on from the Belhaven Road premises although the hire vehicles are and have at all times been owned by Excel Auto Services (i.e. by the pursuer). The pursuer also owns all of the shares in a company originally incorporated as Excel Auto Services Limited and now called Lanarkshire Auto Services Limited which has never traded. The heritable property at Caledonian Road was sold with planning permission for residential development on 31 March 2003 for net proceeds of £28,463.01.
[14] I have already noted that the ransom strip for the site at Netherton Street was purchased by the pursuer for £25,000 in 2004. The pursuer's evidence was that this purchase was funded to the extent of almost £15,000 by a gift from his parents in March 2004 and, as regards the balance, by part of the proceeds of an insurance claim, received in May 2001, for the theft of one of the breakdown vehicles which the pursuer owned at the time of the marriage. The original plan to use the site for the vehicle hire business has not proceeded, but in 2011 the pursuer derived some income from it by letting it for the storage of containers. The site, including the strip, remains in the ownership of the pursuer. The strip, though not the remainder of the site, was therefore matrimonial property at the relevant date.
[15] In December 2001, the pursuer acquired an area of land at Millburn Road, Ashgill with planning permission for the construction of three dwellinghouses. The consideration was £30,000. The land was acquired by the pursuer as a joint venture with a builder, who was responsible for clearing the site and constructing the foundations of the three houses. On 6 June 2002 the pursuer transferred a one-sixth pro indiviso share of the land to the defender for no consideration. As well as continuing to carry on his garage services and vehicle hire businesses, the pursuer carried out much of the construction work on the houses at Ashgill himself. In 2003 the pursuer and the defender sold and conveyed the middle plot (Plot 2) to a company controlled by the builder, who built a house on it. At the same time the pursuer proceeded to construct a house on Plot 3, which the parties moved into in July 2003 following the sale of the house at Kilnwell Quadrant. The pursuer then constructed a house on Plot 1 and, when Plot 3 was sold in April 2004, the parties moved into the house on Plot 1. In March 2005 they decided to purchase a new house being built on a nearby site by a commercial developer. The pursuer described the advantages of this house as being that it was closer to the parties' work and the children's schools and was of a design which he and the defender had admired in previous developments. The parties remained in Plot 1 (by now known as 1 Millburn Gate, Ashgill) until it sold in about November 2006, as they considered it preferable from a commercial point of view to sell a house which was occupied. The new house, at 54 Berryhill Crescent, Wishaw, was purchased for £210,144 with the assistance of a short-term interest-free loan from the pursuer's parents which was subsequently repaid. This house remained the matrimonial home at the relevant date.
[16] According to the pursuer's evidence, the purchase of the site at Ashgill and the construction of houses on Plots 1 and 3 was financed (other than by the re-sale proceeds of Plot 2) by the sale of assets owned by him prior to the date of the marriage, including savings held in bank accounts, shares, the property at Caledonian Road, the house at Kilnwell Quadrant, and certain breakdown vehicles. The overall effect of the transactions described above was that by 2005 the parties had sufficient funds to buy 54 Berryhill Crescent without the need of a mortgage and were left, after repayment of the loan from the pursuer's parents, with a surplus which the pursuer estimated to have been around £70,000.
[17] In the course of the marriage the pursuer made various changes to his personal pension arrangements. I have already noted that at the time of the marriage the pursuer had a personal pension plan and a with-profits investment plan with Equitable Life Assurance and a pension plan with Co-operative Insurance. The with-profits investment policy was surrendered in March 2001 for £14,537. In January 2002 the pursuer made a single contribution to a Legal & General pension policy which, after grossing up for tax, amounted to £2,564. In May 2002 he took out a personal pension with Standard Life, initially using a transfer payment of £36,068 in respect of his Equitable Life pension plan. The pursuer continued to make contributions to the Co-operative pension plan until April 2004 when the policy benefits thereof, amounting to £12,453, were transferred to the Standard Life pension. No further contributions were made to the Standard Life pension. On 3 April 2008 the policy benefits of the Standard Life pension, then amounting to £68,234, were transferred to a new Halifax Stakeholder Pension policy. Finally, on 18 April 2008, the policy benefits of the Legal & General pension policy, then amounting to £3,864, were transferred to the Halifax pension policy. No further contributions were made to the Halifax policy. It is agreed that at the relevant date the Halifax pension policy had a cash equivalent transfer value ("CETV") of £73,216.
[18] For a period of about a year before and after the marriage, the defender worked in the pursuer's business, performing office duties. This arrangement was not particularly successful and was brought to an end. Thereafter, following a brief period of unemployment, the defender began part-time work as a clerical officer at Wishaw General Hospital. After the birth of each of the children she took maternity leave and then returned to work. She continues to work part-time there, although in about 2008, when EB started school, she ceased working five half-days per week and began working two full days per week instead.
Matrimonial property at the relevant date
[19] There is substantial agreement between the parties as to the identification and valuation at the relevant date of most of the assets which constitute the pool of matrimonial property. The parties are also agreed (i) that sums at credit of two bank accounts and two building society accounts held in trust for SB and EB, and also two sums of £7,800 previously held in those accounts and removed by the pursuer, are to be left out of account for the purposes of this action; and (ii) that a bank account held in trust for M is to be similarly left out of account. Before setting out in tabular form the matrimonial property and its value, I must, however, deal with certain matters which remained contentious.
(a) Land at Netherton Street
[20] It will be recalled that the ransom strip, though not the remainder of the site at Netherton Street, was acquired during the parties' marriage. Evidence regarding the value of the ransom strip at the relevant date is contained in a letter dated 24 November 2011 signed by the two chartered surveyors (Mr Scott Duguid and Mr Ian Woods) instructed by the pursuer and defender respectively. This letter records the surveyors' agreement that
· on the assumption that the main plot and the strip were in separate ownership as at the relevant date, the value of the strip would be fairly stated at £45,000;
· on the basis that the strip was not in any way connected to the main site, its value as a small area of private open space would be fairly stated at £5,000.
[21] Counsel for the pursuer submitted that the ransom strip should be assessed as having no value or a de minimis value of £5,000. Counsel for the defender submitted that the link between the proceeds of the insurance claim and the purchase price of the strip had not been credibly established. Although it was accepted that the non-matrimonial provenance of the other part of the purchase price was established, this was of minimal significance in the overall picture and did not justify a departure from equal sharing. The strip should be brought into account at a value of £45,000.
[22] It is notable that neither of the bases of valuation adopted by the surveyors reflects the practical reality, namely that the strip and the main plot are not in separate ownership and are connected with one another. It may be that this is simply an acknowledgement that it would be unrealistic to attempt to place a value on a part of an undivided area of land. Nevertheless it does not appear to me that either of the values agreed in the surveyors' letter provides a fair method of placing a value on the matrimonial property (the strip) for present purposes, where it now forms an undivided part of the whole area of land. In my opinion the most equitable method of allocating a value to the matrimonial property is a proportionate allocation of the value of the whole. Neither of the surveyors gave evidence at the proof as a consequence of the scope of agreement reached between the parties on valuation issues. Both had, however, provided valuations of the land which were put to the pursuer in evidence. Mr Duguid calculated the land (which I take to mean the whole area) to extend to 1.87 acres (i.e. 7,567 m2) or thereby and valued it at £150,000 at the relevant date. Mr Woods calculated the land, not including the strip, to extend to 1.99 acres (8,044 m2) or thereby, and the strip to extend to 0.06 acres (240 m2) or thereby and valued the site as a whole at £200,000. These figures were not tested in cross-examination, although they were put to the pursuer who did not disagree that the land had a value in the range £150,000 to £200,000. In the letter signed by the two surveyors which was the subject of agreement, the value of £5,000 for the strip as an unconnected area of land was arrived at on the basis of a valuation of between £10 and £20 per square metre. This would put the area of the strip at between 250 and 500 m2. Doing the best I can with the information available, I proceed on the assumption that a value of £175,000 is appropriate for the whole site and, on a roughly proportionate basis, attribute 5% of that value to the strip. I therefore allocate the sum of £8,750 to the value of the matrimonial property, consisting of the strip, at the relevant date. I return below to the question of the treatment of this sum in the sharing of the matrimonial property between the parties.
(b) Debts outstanding at the relevant date
[23] In his calculation of the value of the matrimonial property at the relevant date, the pursuer seeks to deduct certain debts. It is agreed that a loan of £36,000 to the pursuer by Excel Hire Drive Limited was outstanding at that date. The other alleged debts were contentious.
(i) An invoice was produced addressed to the defender for professional services rendered by Wallace Construction Law, described as "solicitors and claims consultants", in connection with a dispute with North Lanarkshire Council regarding a placing request for EB. The invoice has certain curious features. It bears to be "Invoice No 1", is addressed to the pursuer "by email only", is undated and bears to be for "professional services as more particularly described in the attached global invoice 10129 and narrative dated 21 November 2009". Invoice 10129 is not produced. The amount charged, inclusive of VAT, is £1,664.13. The defender agreed that the principal of Wallace Construction Law, Mr Anthony Wallace, who is said to be a friend of the pursuer, had provided services regarding EB's placing request, but pointed out that this must have occurred prior to EB starting school in August 2008. She thought the bill had been paid before the relevant date. The pursuer's oral evidence regarding the debt was somewhat equivocal as to whether, as at the relevant date, Mr Wallace was expecting payment of this sum. Mr Wallace did not give evidence. The vouching of this debt is unsatisfactory. Given the narrative which I have quoted above, it seems that the invoice was probably issued along with a global invoice on 21 November 2009. That being so, it seems to me that acceptance of the defender's argument would necessitate my finding that the invoice was issued by the principal of Wallace Construction Services at a time when he knew that the debt had either been paid or was no longer expected to be paid. I am not prepared to make such a finding and I therefore accept that this was a joint debt outstanding at the relevant date.
(ii) An invoice was produced addressed to "Mr C M [B]" for work carried out by Keachie Electronics in connection with the supply and installation of televisions in the matrimonial home. The invoice (which is not a valid VAT invoice although it bears a VAT registration number for the supplier's business) is dated 22 February 2010 and shows a balance due of £1,217.00 after deduction of an allowance of £1,103.00 for garage services supplied by the pursuer's business by way of part payment. The proprietor of Keachie Electronics, another friend of the pursuer, did not give evidence. The defender recalled the work being carried out but did not accept that this debt was outstanding at the relevant date. Her recollection was that the total bill she was given at the time was just over £1,300 before deduction of the allowance for the pursuer's services. If I were to accept this evidence it would be a necessary inference that this invoice, to the knowledge of both the issuer and the pursuer, was falsified. I see no proper basis for such an inference and I conclude that the defender's recollection is mistaken. I find that as the goods were supplied and work carried out in the matrimonial home prior to the relevant date, this was a joint debt outstanding at the relevant date.
(iii) A second invoice from Keachie Electronics was produced, dated 24 April 2010 and addressed this time to "Mr & Mrs C M [B]". It bore to be for repair work carried out in April 2010 to the house alarm system at 54 Berryhill Crescent. The sum charged, again without any reference to a VAT element, is £354.90. Clearly this was not a debt outstanding at the relevant date, but counsel for the pursuer submitted that if it now had to be paid by the pursuer this should be taken into account under section 9(1)(b) of the 1985 Act as an economic disadvantage suffered by him in the interests of the defender or the family. I am not persuaded that a post-relevant date debt should be so treated and in any event I regard the amount of this debt as de minimis in the context of this action. I make no allowance for it in my calculations.
(iv) An invoice addressed to the pursuer dated 31 March 2011 from Freelands, Solicitors, in the sum of £940.00 inclusive of VAT, was produced. This bore to be for professional services rendered in connection, firstly, with a possible claim for professional negligence against another firm of solicitors in relation to the acquisition of the land at Netherton Street without access to the public road and, secondly, a "British Gas problem". The work to which this invoice relates appears to have been carried out in 2005. The issuing of the invoice seems to have been prompted by inquiries by solicitors acting on behalf of the pursuer regarding the circumstances in which the ransom strip had had to be acquired. There was also in process an affidavit dated 23 September 2011 from Mr Paul Santoni, the solicitor concerned at Freelands, Solicitors, concerning the possible claim (which did not proceed after it was repudiated by insurers) but making no mention of the invoice. Although it seems clear, as a matter of law, that any demand for payment for professional services rendered in 2005 had not prescribed at the relevant date, I am not satisfied that as at that date there was any intention on the part of Freelands to render an invoice for these services or that, but for inquiries made as a consequence of the present proceedings, such an invoice would ever have been rendered. I do not therefore consider that this sum should be regarded as a debt outstanding at the relevant date.
Calculation of value of matrimonial property at the relevant date
[24] On the basis of the above findings, the matrimonial property as at the relevant date is as set out in the following table (being a revised version of the table submitted by counsel for the pursuer with, inter alia, identifying account numbers removed):
| ASSET | JOINT | PURSUER | DEFENDER |
| House at 54 Berryhill Crescent | £200,000.00 | £100,000.00 | £100,000.00 |
| Household Contents | | (Divided | by agreement) |
| Land at Netherton Street | | £8,750.00 | |
| Elddis Caravan | £11,500.00 | £5,750.00 | £5,750.00 |
| Personalised Number Plates: | | | |
| i V35 FNS | | £0 | |
| ii A17 AVV | | £50.00 | |
| iii 72 SB | | £5,600.00 | |
| iv 1 CTE | | £4,800.00 | |
| v 62 EB | | £3,000.00 | |
| vi 6 ERS | | £2,600.00 | |
| vii 72 EB | | £3,000.00 | |
| Bank Accounts/Investments: | | | |
| i Bank of Scotland account | | £6,668.47 | |
| ii Bank of Scotland account | | £8,079.83 | |
| iii Egg account | | £21.21 | |
| iv Santander account | | £34,767.33 | |
| v Birmingham Midshires account | | £11.92 | |
| vi Halifax Websaver account | | £1,022.67 | |
| vii Barclays monthly savings account | | £270.07 | |
| viii Barclays "more for more" savings account | | £111.49 | |
| ix Barclays ISA | | £3,680.60 | |
| x Halifax ISA Investor | | £17,282.08 | |
| xi Halifax Shares Stocks and Shares ISA | | £3,271.00 | |
| xii Standard Life Shares | | £2,965.88 | |
| xiii Halifax ISA Investor | | | £17,282.08 |
| xiv Halifax Stocks & Shares ISA | | | £493.00 |
| xv Santander ISA | | | £24,066.22 |
| xvi HBOS Joint Account | £889.11 | £444.56 | £444.55 |
| xvii RBS Account | | | £357.48 |
| xviii Halifax Sharing Dealing Account | | £2,242.38 | |
| Halifax Stakeholder Pension Policy | | £73,216.40 | |
Excel Hire Drive Ltd shares | | £39,000.00 | |
| Interest in Excel Auto Services | | £54,000.00 | |
Lanarkshire Auto Services Ltd shares | | £100.00 | |
Cash held by pursuer | | £30,000.00 | |
Total before deduction of liabilities | | £410,705.89 | £148,393.33 |
| LIABILITIES | JOINT | PURSUER | DEFENDER |
| Director's Loan | | £36,000.00 | |
| Keachie Electronics | £1,217.00 | £609.00 | £608.00 |
| Wallace Construction | £1,458.00 | £729.00 | £729.00 |
| | | £37,338.00 | £1,338.00 |
| Total after deduction of liabilities | | £373,367.89 | £147,055.33 |
Total value of matrimonial property at the relevant date = £520,423.22.
Financial position of the parties at the date of proof
[25] Since the date of separation, the defender has required to use a significant amount of the investments listed in her name in the table above for living expenses. The consequence of this is that by the date of the proof, her total cash and investment resources amounted to £17,961. The pursuer, at the time of the proof, had cash and investments amounting to £88,626, the site at Netherton Street (including the element of matrimonial property) valued at, say, £175,000, his one half share of the caravan (£5,000), the number plates listed above (£19,000), and non-matrimonial property including the heritable property at Belhaven Road and certain other personalised number plates. It is agreed that the house at 54 Berryhill Crescent is still worth £200,000 and that the caravan is now worth £10,000.
Submissions: fair sharing of matrimonial property and economic disadvantage
Submissions for the pursuer
[26] Counsel for the pursuer submitted that an unequal division of the matrimonial property was justified by special circumstances and, in particular, by the source of funds used to acquire it, those funds not having been derived from the income or efforts of the parties during the marriage. It was acknowledged that the starting point in the authorities was the decision of the House of Lords in Jacques v Jacques 1997 SC (HL) 20, where it was made clear that the existence of special circumstances, such as the source of funds, did not necessarily require an unequal division. At pages 24-5, Lord Clyde observed:
"...On a proper construction of [subsection 10(1) of the 1985 Act] it is not enough simply to identify some special circumstance in order to depart from an equal division. An unequal division must be justified by those circumstances. The court has the task of determining the proper apportionment where an unequal division is justified and that apportionment will be determined by what is justified by the special circumstances. But the earlier step of deciding whether any departure from equality should be made also involves the test of justification by the special circumstances."
I was referred to a number of cases in which the source of funds used to acquire matrimonial property was held to constitute special circumstances justifying an unequal division, including R v R 2000 Fam LR 43 (in which reference had in turn been made to MacLean v MacLean 28 March 1996, unreported), Campbell v Campbell 2008 Fam LR 115, and Willson v Willson 2009 Fam LR 18. In some of these cases, such as MacLean, Campbell, and Watt v Watt 2009 SLT 931, a broad approach had been taken by the court in specifying an unequal percentage division as between the two parties. In others, such as Willson, the court had had regard to the value of particular assets in assessing what was a fair though unequal division.
[27] As regards the issue of economic advantage or disadvantage (section 9(1)(b)), counsel referred to the following observations by Lady Smith in Coyle v Coyle 2004 Fam LR 2 at paragraph 37:
"It is important to recognise that Parliament did not, in the 1985 Act, provide that whenever a couple divorce after a marriage in which one has been the breadwinner and one has been the homemaker, the latter must receive extra and compensatory financial provision on divorce. The section is quite specific. Before the principle here relied on can be taken into account it must be established that there has been an identifiable economic advantage which derives from an identifiable contribution by the other spouse and it must appear fair to the court to take account of it. An example of the operation of the principle can be seen in the case of De Winton v De Winton where the wife pursuer had contributed substantial sums of non-matrimonial money to a family partnership from which the defender derived economic advantage and had also worked, without payment, in his business. It was not difficult to identify a specific financial and non-financial contribution nor to identify that the defender had been left in a better financial position as a result, retaining property which had an enhanced value because of those contributions which was not, significantly, matrimonial property."
In Coyle itself, it was not disputed that the wife pursuer had sustained a significant economic disadvantage by giving up a successful career to marry the defender. By way of contrast, reference was made to the case of W v W 2004 Fam LR 54 in which Lord Clarke was not satisfied that there had been clear and compelling evidence of actual economic disadvantage and observed (paragraph 68) that any economic disadvantage in that case could be met by an equal division of matrimonial property.
[28] Under reference to the foregoing authorities, counsel for the pursuer invited me to treat the following matters as special circumstances justifying an unequal sharing of the matrimonial property:
(i) Land at Netherton Street
Even if the ransom strip at Netherton Street were attributed a value in the calculation of matrimonial property, it should be left out of account altogether from the division between the parties. It had been purchased using funds whose source had been non-matrimonial property: a gift from the pursuer's parents and the proceeds of an insurance claim. In any event on the basis of the surveyors' evidence any value which the strip possessed was derived almost entirely from its connection to the main site, which was not matrimonial property.
(ii) Funds used for the development of Ashgill, the purchase of 54 Berryhill Crescent and the acquisition of investments
I have already noted that the development of the site at Millburn Gate, Ashgill was financially successful. The aggregate proceeds of sale of Plot 2 and of the two houses on Plots 1 and 3 not only enabled the parties to purchase 54 Berryhill Crescent without requiring mortgage finance, but also produced a surplus for investment. It was not suggested on behalf of the pursuer that the surplus of income over costs of development of Ashgill was anything other than the fruits of the joint efforts of the parties during the period when the pursuer was engaged in carrying on construction work as well as running his garage business, and the defender was providing a home for the family, often in somewhat difficult conditions due to the building works, as well as working part time. The pursuer's argument was focused rather on the capital which funded the building project and which, it was submitted, had been derived from non-matrimonial sources. These comprised:
· balances held prior to marriage in the pursuer's personal and business bank accounts and as cash in hand (amounting, at the date of marriage, to £56,097);
· property purchased by the pursuer before marriage and sold after marriage, including in particular the building at 109 Caledonian Road, Wishaw (sold for £28,463) and the house at 20 Kilnwell Quadrant, Motherwell and associated garden shed and greenhouse sold separately (realising total sale proceeds of £49,810);
· shares held at the time of marriage and sold after marriage (realising sale proceeds of £14,508);
· recovery vehicles and sold after marriage (realising £5,050);
· balance of proceeds of insurance claim for recovery vehicle (£1,125).
These sums were said to amount to £145,903 in total (although it appears to me that the garden shed and greenhouse were double counted in the pursuer's calculation and that the correct total is £145,053). It was recognised that the bank balances would not have been frozen at the same level between 2000 and the time of development of Ashgill, but there was no evidence that they had decreased and they might in fact have increased.
(iii) Halifax pension policy
Although it was not formally a matter of agreement that the whole of the value of the Halifax pension policy was matrimonial property, the pursuer's argument proceeded on the footing that it was. As this pension arrangement was made in April 2008, the whole of the pursuer's membership of it prior to the relevant date fell within the period of the marriage, and it appears to me to be clear that it does require to be treated wholly as matrimonial property. An apportionment in terms of the Divorce etc (Pensions) (Scotland) Regulations 2000 is not therefore required and I do not have to address directly certain possible difficulties in the application of these Regulations which were canvassed before me. I heard evidence from Dr John Pollock FFA, whose remit had been to estimate what proportion of the CETV of the pension at the relevant date was funded by contributions made during the period of the marriage. Dr Pollock's calculation proceeded on the basis that:
· the value of the Halifax pension comprises elements derived from the Legal & General policy, the Cooperative policy and the Equitable Life pension policy respectively (the latter two via the intermediary Standard Life policy);
· the value of the Legal & General policy was wholly attributable to contributions made during the marriage;
· the value of the Co-operative policy was attributable in part to contributions made during the marriage, estimated on a time apportionment basis to be 28.6% of the total;
· no part of the value of the Equitable Life policy was attributable to contributions made during the marriage.
On this basis, Dr Pollock calculated, as fully set out in his report, that the proportion of the CETV of the Halifax policy which was built up from contributions made during the marriage was 11.8%, amounting to £8,639. Counsel submitted that the balance amounting (according to my calculation) to £64,577 should be wholly allocated to the pursuer in the sharing of the matrimonial property, as should a sum equivalent to the proceeds of surrender in 2001 of the Equitable Life with-profits investment policy amounting, as I have already noted, to £14,537.
(iv) Registration number plates 72SB and 72EB
The acquisition of personalised motor vehicle registration plates is a hobby of the pursuer. These two plates, which include the initials of SB and EB, were purchased by the pursuer during the marriage. He expressed an intention to make gifts of them to the girls at some time in the future. There was some dispute as to whether the defender had been a party to the decision to make this purchase; I find, in view of the pursuer's interest in personalised number plates, that it is likely that the decision to purchase these plates was effectively his, albeit that it was assented to by the defender. The plates are currently on two hire drive vehicles owned by the pursuer in order to avoid having to pay the fee for retention certificates. It was submitted that the value of these number plates should be wholly allocated to the pursuer in the sharing of the matrimonial property.
[29] On the basis of the foregoing submissions, counsel for the pursuer invited me, if adopting a broad approach, to divide the matrimonial property in the proportion of 75:25 or at least two-thirds/one-third in favour of the pursuer. Alternatively, if I were adopting the approach of considering discrete assets, the pursuer should be allocated any part of the value of the strip of land at Netherton Street treated as matrimonial property, the value of non-matrimonial assets used to fund the Ashgill development, the proportion of the value of the Halifax pension attributable to pre-matrimonial contributions as calculated above, the value of the Equitable Life policy surrendered in 2001, and the value of the two personalised registration plates held for the parties' two daughters. The point was also made that neither of these approaches took explicit account of the fact that although the value of the pursuer's business has been included as matrimonial property, it has remained substantially unchanged since before the marriage. If, hypothetically, it had been incorporated prior to marriage, none of its value would have been matrimonial property. It was recognised, however, that the submission for the pursuer did provide for a part of the value of the assets of the business prior to marriage to be left out of account, in so far as these were used to fund the Ashgill development. It was presumed that the pursuer would assume liability for the joint debts.
[30] It was further submitted that an order should be made for the transfer of the defender's interest in the former matrimonial home to the pursuer, in which case a balancing payment would be due by the pursuer to the defender. Failing an order for transfer, an order should be made for sale of the property and division of the proceeds, in which case an order should also be made for the payment of a capital sum by the defender to the pursuer. Further orders should be made for transfer of the defender's interest in the caravan to the pursuer and, in the event that they were not left out of account, for the sale of the two personalised registration plates and equal division of the proceeds of sale. Under reference to section 8(2)(b) of the 1985 Act, counsel submitted that these orders would be reasonable having regard to the resources of the parties. An order for transfer of the pursuer's interest in the former matrimonial home to the defender would not, however, be reasonable having regard to the resources of the parties, because the defender could not afford to make the balancing payment to the pursuer that would be required. In assessing what was or was not a reasonable exercise of the court's discretion, no account should be taken of any liability that the recipient of a capital sum might have to make a payment to the Scottish Legal Aid Board: McKinnon v McKinnon 2008 Fam LR 25.
Submissions for the defender
[31] Counsel for the defender emphasised that the starting point in determining a fair sharing of matrimonial property was the presumption that it would be achieved by an equal sharing. Only where there are compelling reasons should the court deviate from equal sharing. The decision of the House of Lords in Jacques v Jacques (above) makes clear that even where special circumstances are found to exist the court is not obliged to make an unequal division. In Adams v Adams (No 1) 1997 SLT 144, equal sharing was described by Lord Gill as "the normal result which the legislation contemplates". The case of Campbell v Campbell (above) to which the pursuer had referred was the only reported case in which the court had attempted to re-establish the position in which the parties had been before marriage, and the circumstances there were very different from those of the present case. The other cases founded upon by the pursuer were likewise distinguishable. There was no justification in the present case for attempting to put the parties back to their pre-marriage position.
[32] With regard to the matters identified by the pursuer as justifying unequal sharing, counsel made the following submissions:
(i) Land at Netherton Street
There was no reason to leave the value of this matrimonial property out of account. In particular, the pursuer's explanation that its purchase was funded partly from the proceeds of an insurance claim which had been made more than three years previously was not credible. The bank records of Excel Auto Services show that on the day after the proceeds of £11,373 were received on 14 May 2001, the sum of £8,000 was transferred to another account. It was accepted that funding of the balance of the purchase price from a non-matrimonial source was adequately vouched but this was of minimal importance in the overall picture and did not justify unequal sharing.
(ii) Funds used for the development of Ashgill, the purchase of 54 Berryhill Crescent and the acquisition of investments
Counsel submitted that the pursuer had failed to establish that the pool of matrimonial property in existence after the sale of the Ashgill properties and the purchase of Berryhill Crescent was derived from pre-matrimonial assets. There was no clear audit trail, despite the pursuer's apparently meticulous record keeping. According to his evidence to the court, the investments accumulated during the marriage were derived "about 50/50" from capital and from income. To the extent that the pool was derived from profit from Ashgill, this had been contributed to by the respective efforts of both parties. In so far as the working capital for the Ashgill development had been derived from the sale proceeds of the house at 20 Kilnwell Quadrant, there were particular reasons for not departing from equal sharing. The pursuer had accepted in evidence that intention to use this property as a family home had been at least one of the reasons used by the pursuer to persuade the local authority to authorise the exchange of tenancies, and it had in fact been the family home for a period of two years before being sold to fund the Ashgill development. The fact that title to Berryhill Crescent had been taken in joint names of the parties with a survivorship destination was supportive of equal sharing: see the discussion of section 10(6)(a) of the 1985 Act in Jacques v Jacques (above) at page 25. In Cunningham v Cunningham 2001 Fam LR 12, Lord MacFadyen had expressed the following view at paragraph 25:
"Money used to purchase the matrimonial home is, in my view, devoted in a particularly clear way to matrimonial purposes, and the source of the funds so used is in my view less important than it would be in the case of other types of matrimonial property."
The present case, it was said, was a fortiori because of the absence of any direct link from the pool of matrimonial property at the relevant date (other than the £14,000 contributed to the price of the strip at Netherton Street) back to pre-matrimonial assets.
(iii) Halifax pension policy
On a proper construction of section 10(5) of the 1985 Act and the 2000 Regulations, there could be no doubt that the whole of the CETV of the pursuer's interest in the Halifax pension policy at the relevant date was matrimonial property, although counsel accepted that there were special circumstances which might justify an unequal sharing of the value. However, she took issue with the use of any apportionment based upon the date of the making of contributions to the pension. The fairest way of ascertaining the proportion referable to the period of the marriage was to have regard to the approach of the 2000 Regulations. These covered a variety of different types of pension scheme and the apportionment specified in Regulation 4 was made by reference to periods of membership, not amounts contributed. The CETV of the pension at the relevant date had been calculated in accordance with the Regulations and the statutory apportionment method should be applied so far as possible. In Stewart v Stewart 2001 SLT (Sh Ct) 114, the sheriff (Sir S S T Young) had rejected an argument that a perceived unfairness arising from application of the terms of the predecessor of the 2000 Regulations constituted a special circumstance justifying departure from equal sharing. In the circumstances of the present case the approach most consistent with that of the Regulations would be to reduce the Halifax pension to its component parts and then calculate the proportion of the period of membership attributable to each component part that fell within the period of marriage. This produced a total amount of £51,450 which should be regarded as referable to the period of the marriage for the purposes of section 10(5).
(iv) Registration number plates 72SB and 72EB
It was submitted that there was no justification for excluding the two personalised number plates from an equal sharing of the matrimonial property. This had been the pursuer's idea and there was nothing to prevent him from changing his mind in the future.
[33] In relation to the value of the pursuer's business, it was submitted that no convincing "special circumstances" argument could be made on behalf of the pursuer. The liquid assets held prior to marriage had been expended and no business assets of any value which had been owned at that time were still owned at the relevant date. The value of the business at the relevant date was attributable to the operation of the business by the pursuer during the period of the marriage and should be divided equally. Similarly, the value of the pursuer's shares in Excel Hire Drive Ltd at the relevant date derived almost entirely from the debt of £36,000 due to the company by the pursuer. That money had been earned from business activities carried on wholly during the period of the marriage.
[34] Under reference to section 9(1)(b) of the 1985 Act, counsel for the defender submitted that if I were to find that there were special circumstances justifying an unequal sharing of the matrimonial property in favour of the pursuer, the consequence would be that the defender would have suffered an economic disadvantage in the interests of the pursuer and the family, consisting of a decrease in income due to working part-time and a decrease in capital due to her not having been able to build a pension interest during the marriage. I should take this into account by rejecting an unequal sharing with the sole exception of the pursuer's pension rights.
[35] On the basis of these submissions it was contended that an order should be made for the transfer of the pursuer's interest in the former matrimonial home to the defender. A balancing payment of approximately £25,000 to the defender would also be required. The pursuer had ample resources from which to make such a payment and to acquire alternative accommodation for himself and for the children of the marriage during their periods of residence with him. An outcome in which the defender continued to reside at 54 Berryhill Crescent was the more reasonable solution having regard to the parties' resources. The defender continued to owe an obligation of aliment to M and accordingly required a four-bedroom property in order to accommodate each child in his or her own bedroom. The pursuer required only three bedrooms. The defender's resources for acquisition of alternative accommodation were limited and would be further eroded if she were to receive a capital sum from which legal expenses would be clawed back by the Scottish Legal Aid Board. This was a circumstance which the court was entitled to take into account: Cunniff v Cunniff 1999 SC 537 per Lord McCluskey at 545-6, not cited to the court in McKinnon v McKinnon (above).
Submissions: economic burden of child care and financial dependency
[36] The defender also seeks an order for payment to her by the pursuer of a periodical allowance of £700 per month for six months from date of decree and thereafter of £300 per month for a further period of 21/2 years.
[37] Counsel submitted that such an order was justified by application of the principles in section 9(1)(c) and (d) of the 1985 Act. The defender had been and continued to be dependent to a substantial degree upon the financial support of the pursuer. She currently had a shortfall of income of around £645 per month, before taking account of the pursuer's interim aliment payments of £300 per month. She has been funding the remaining shortfall from funds in the Santander account in her name. After the parties begin to live in separate accommodation the shortfall will increase to around £1,000 per month. The defender's intention is to increase her working hours to full time. She believes that an opportunity to do so will arise during 2012. She also anticipates that as a consequence of the order for shared care of the children her expenditure on their care will diminish. In these circumstances the periodical allowance sought was necessary in order to share fairly the economic burden of caring for the children of the marriage and to enable the defender to adjust to the loss of the pursuer's support following divorce. Under reference to section 13(2) of the 1985 Act, counsel acknowledged that the court might decide that these matters could be dealt with by an appropriate order for payment of a capital sum and/or transfer of property.
[38] In response, counsel for the pursuer submitted that if an order were to be made in the defender's favour for payment of a capital sum, there would be no justification for an order for a periodical allowance in addition. In any event, any adjustment period should not exceed six months.
Decision: fair sharing of matrimonial property and economic disadvantage
[39] Although the decision of the House of Lords in Jacques v Jacques makes clear that the question whether the existence of special circumstances justifies an unequal sharing is one for the discretion of the court, it does not provide guidance as to the factors which the court might take into account in exercising that discretion. In R v R, Lord Eassie placed emphasis on the Scottish Law Commission's expression of the underlying principle as being the sharing of property acquired by the spouses' efforts or income during the marriage. In that case, the fact that the matrimonial property derived to a very large extent from inherited or gifted assets was regarded as justifying an unequal division. I have already noted that in Cunningham v Cunningham, Lord MacFadyen expressed the view that the source of funds was less important if devoted to the purchase of the matrimonial home; however, in two Edinburgh sheriff court cases (Langlands v Barron, 6 September 2006, and Houston v Houston, 20 December 2007) the respective sheriffs expressed disagreement with this view, at least as a statement of principle. Other decisions to which I was referred suggest that relevant factors may include the duration of the marriage and the extent to which assets constituting matrimonial property are derived from the value of assets of a business carried on by one of the parties prior to marriage.
[40] Having regard to all of these considerations, I have come to the conclusion that the source of funds and assets used to acquire matrimonial property does, in the circumstances of this case, justify an unequal sharing of the matrimonial property. I do not, however, consider that it would be appropriate here to attempt to restore to the pursuer the whole value of the assets which he brought to the marriage. The marriage was not an especially short one, and it has been characterised by the joint efforts of the parties to earn a living and to provide and maintain a family home. It appears to me that a fair approach in the present case is to allocate a sum to the pursuer which broadly represents certain pre-matrimonial assets whose value has throughout the marriage effectively remained outside the pool of common wealth of the family. In the sharing calculation I propose to allocate to the pursuer a sum approximately representing the following assets:
(i) Land at Netherton Street: I regard the ransom strip as essentially ancillary to the main site which is not matrimonial property. Although I accept that the tracing of a part of the purchase price of the strip back to pre-matrimonial funds is somewhat tenuous I consider that in all the circumstances it is fair to allocate this asset, to which I attributed a value of £8,750, wholly to the pursuer.
(ii) Funds used for the development of Ashgill etc: I am satisfied that the funding of the Ashgill development can, at least in part, be clearly traced to assets owned by the pursuer prior to marriage. I find this to be so with regard to the sale proceeds of 109 Caledonian Road (£28,463) and the various shareholdings which realised £14,508 in total. I do not find it to be so with regard to the bank account balances immediately prior to marriage. It appears to me to be much more likely that the sums at credit of these accounts in July 2000 were expended in the course of the first three years of the marriage and that whatever sums may have been contained in them by 2003 constituted fruits of the parties' joint endeavours during those years. Similarly, it appears to me that the proceeds of the sales in 2001 of recovery vehicles owned by the pursuer before marriage, and the proceeds of the Equitable Life with-profits investment plan surrendered in March 2001, would have been utilised in matrimonial expenditure and should not be traced through to matrimonial property at any future date. The sale proceeds of Kilnwell Quadrant (and its ancillary items) require special consideration. On the one hand, the profit made by the pursuer on the eventual sale of Kilnwell Quadrant was largely attributable to the entitlement to discounted purchase that derived from his own pre-matrimonial tenancies of council-owned properties. There was disagreement between the pursuer and the defender in their evidence as to whether Kilnwell Quadrant had been acquired by the pursuer, in his exchange with another council tenant, with a view to providing a suitable family home after marriage. On this point I prefer the evidence of the defender that the parties did rely upon their impending marriage, and on the fact that the defender had a young child, as arguments to persuade the local authority to authorise the exchange. As I have noted, the pursuer accepted that this was at least one of the arguments deployed. For this reason and because the property was the matrimonial home for some time after the parties' marriage, I am not persuaded that I should allocate any sum to the pursuer by way of unequal sharing in respect of the sale proceeds of Kilnwell Quadrant. This property seems to me to have been too closely concerned in the parties' matrimonial arrangements to warrant a departure from equal sharing with regard to the fruits of its sale.
(iii) Halifax pension policy: I have already noted that the apportionment which I have to make with regard to the pension policy is not the statutory apportionment prescribed by the 2000 Regulations. The present case is therefore distinguishable from Stewart v Stewart. I must, however, attempt to apply section 10(5) of the 1985 Act. In Jackson v Jackson 1999 Fam LR 108, Lord MacFadyen observed:
"It seems to me that the use of the word 'referable' [in section 10(5)] is intended to secure that there is not brought into account as matrimonial property any part of the pension rights which the party can be regarded as already 'having' at the date of the marriage."
I respectfully agree with Lord MacFadyen's observation, and it appears to me that in the circumstances of the present case the fairest method of apportionment is, as counsel for the pursuer submitted, by reference to the time of payment of contributions to the various pensions whose value is now represented by the Halifax pension policy. The bulk of those contributions were made prior to the parties' marriage. That being so, I cannot see why it would be fair to carry out the apportionment by reference to periods of membership which seem to me to be essentially irrelevant. As the case is not within the scope of the Regulations I do not feel myself driven to adopt the criterion of membership which is used in the Regulations but which, in my view, would not produce a fair apportionment in the circumstances of this case. I therefore propose to allocate to the pursuer the sum of £64,577 produced by Dr Pollock's calculation.
(iv) Registration number plates 72SB and 72EB: I accept the pursuer's evidence that it is his current intention to transfer these number plates to SB and EB respectively at some future date. However, I also noted him to say in evidence that if they were not left out of account in the division of matrimonial property then he would wish to sell them and divide the proceeds with the defender. I agree with the defender's submission that there is nothing to prevent the pursuer from changing his mind with regard to the transfer of these plates to the children. I consider that there is no compelling reason to allocate their value wholly to the pursuer in the sharing calculation.
[41] The result of the foregoing discussion is that in the sharing of the value of the matrimonial property at the relevant date the following sums are allocated to the pursuer:
| | £ |
| Land at Netherton Street | 8,750 |
| Funds used for development of Ashgill | 28,463 |
| Funds used for development of Ashgill | 14,508 |
| Halifax pension policy | 64,577 |
| Total | £116,298 |
The balance of the value of the matrimonial property, after deduction of £116,298, would be £404,125, which would fall to be divided equally. The pursuer would thus be entitled to £116,298 + £202,062 = £318,360 and the defender to £202,063. This would represent a division of matrimonial property approximately in the ratio of 61/39 in favour of the pursuer. In order to achieve what I regard as a fair sharing without a spurious impression of accuracy, I round this division to a ratio of 60/40 in favour of the pursuer, which gives the pursuer an entitlement to a share of £312,254 and the defender a share of £208,169.
[42] The defender currently owns matrimonial property to the value of £147,055 after deduction of her share of the joint liabilities. As it is my intention that these liabilities should be wholly assumed by the pursuer, I use this net figure in the following calculations. Before taking into account the issue of the transfer of one party's half share of 54 Berryhill Crescent to the other, the defender would be due a balancing payment of £61,114, together with £5,000 representing her one-half share of the caravan which by agreement is to be transferred to the pursuer, i.e. of £66,114 in all. If, then, I were to make an order for transfer of the pursuer's share of 54 Berryhill Crescent to the defender, she would be due to make a balancing payment to the pursuer of £33,886. If, on the other hand, I were to make an order for transfer of the defender's share of the house to the pursuer, he would be due to make a balancing payment to the defender of £166,114.
[43] I am in no doubt that it is appropriate to make an order with regard to 54 Berryhill Crescent that has the effect of achieving a clean break of the parties' ownership of property in common. This could be done either by ordering the house to be sold and the proceeds divided between the parties or by ordering the transfer of one party's share to the other. I see no good reason for ordering a sale and division of the proceeds. If an order for transfer is made the children of the marriage will continue to spend half of their time in the house in which they have grown up, regardless of which parent continues to occupy it. That being so, the foregoing calculation effectively determines that there is only one order that I can reasonably make, having regard (in terms of section 8(2)(b)) to the resources of the parties. The defender cannot afford to make a balancing payment of £33,886 to the pursuer. Her cash and investment resources currently amount to less than £18,000. Even if it were possible for the defender to obtain a loan of funds sufficient to enable her to make the required balancing payment, it would not in my opinion be reasonable to create a situation in which the defender would be left without any liquid resources and with a debt which she might have difficulty servicing. In these circumstances I propose to make an order for transfer of the defender's share of 54 Berryhill Crescent to the pursuer.
[43] In reaching my decision I take no account of any liability which the defender may have to make a payment to the Scottish Legal Aid Board out of the capital sum awarded to her. The circumstances of Cunniff in which Lord McCluskey was invited to have regard to a claim by the Board appear to have been somewhat peculiar and, in any event, having regard to what is said by his Lordship about the Lord Ordinary's approach, his observations appear to me to have been obiter. I note that Lord Marnoch reserved his opinion as to how far one could or should have regard to the impact of an award on a liability to the Board. In the circumstances of the present case, where the only consequence of a claim by the Board would be to cause a diminution of the sum received by the defender, and where the pursuer will also have legal expenses to meet, I see no reason why a liability to the Board should affect the amount of the capital sum awarded.
[44] I also have to consider the issue of economic disadvantage to the defender. I reject the argument that she has suffered a disadvantage as a consequence of a decrease in her income due to working part time throughout the marriage. Having regard to the defender's working practices before marriage I am not satisfied that she would have been in full time employment if she had not been married to the pursuer. Moreover she has shared the fruits of the parties' joint efforts during the marriage and in so far as she currently owns less than a fair share of the capital produced by those efforts, that imbalance is corrected by the order for payment of a capital sum that I intend to make. So far as inability to build up a pension during the marriage is concerned, there was an issue between the parties as to whether (as the pursuer contended) this was because the defender had decided, against his advice, not to join and contribute to an NHS occupational pension scheme or whether (as the defender contended) she was dissuaded by the pursuer from joining and contributing to such a scheme. On this matter I am inclined to accept the evidence of the pursuer. He appeared to me to be a person who takes a keen interest in personal finance, and who was aware at the material time of the advantages of membership of an occupational pension scheme which included provision for employer's contributions. I find that the decision not to contribute to a pension scheme during the period of the marriage was made by the defender and I do not consider it appropriate to make any award for economic disadvantage in this regard.
[45] Clearly this is not the outcome for which the defender contended. However, it is stating the obvious to point out that one or other of the parties has to be deprived of the right to occupy the former matrimonial home. A division of the matrimonial property which allocated a sufficiently high proportion to the defender to enable her to obtain a transfer of the pursuer's share of the house would not, in my view, have produced a fair sharing in the whole circumstances of the case. I am not persuaded to the contrary by the defender's argument that she and not the defender requires a four-bedroomed house. I should note here that evidence was led on behalf of the defender from Mr William Lauder MRICS, a chartered surveyor with D M Hall LLP, regarding the likely purchase price of certain types of property in the Wishaw area. His remit was to provide information regarding three or, preferably, four-bedroomed semi-detached or, preferably, detached houses of a similar nature to 54 Berryhill Crescent. In order to fulfil this remit he carried out internet searches restricted to properties with a selling price of at least £160,000. In view of the restrictions on his remit, I found Mr Lauder's evidence to be of limited value. I am not persuaded on the evidence led before me that purchase of even a suitable four bedroomed-house in the Wishaw area would be beyond the means of the defender following implementation of the orders which I intend to make, always assuming that she continues to be of the view that this is the size of house which she requires.
Decision: economic burden of child care and financial dependency
[46] I turn now to the issue of whether a further order, such as an order for a periodical allowance, is required in order to apply the principles in section 9(1)(c) and (d) of the 1985 Act. Taking into account the factors listed in section 11(3) and (4), I am satisfied that the fair sharing of the economic burden of caring for the children of the marriage after divorce and the financial dependency of the defender upon the pursuer during the marriage justify the making of an award additional to that which I intend to make to give effect to section 9(1)(a). The defender's earning capacity during the period following divorce will continue to be restricted to some extent by the need to care, on the shared basis agreed between the parties, for the children of the marriage. She requires to provide for their needs, and to provide them with suitable accommodation, during the periods which they will spend in her care. She herself will require time to adjust to a financially independent lifestyle.
[47] In my opinion the supplying of the defender's income deficiency can best be achieved by means of payments by the pursuer, additional to the award in terms of section 9(1)(a), during a limited period of time. I have to consider whether the principles in section 9(1)(c) and (d) could appropriately be given effect by means of an order for payment of one or more additional capital sums rather than a periodical allowance. In circumstances where the defender's financial provision seems as likely to come from the pursuer's capital resources as from his future income, such a course of action does seem to me to be appropriate. In order to give effect to the principles in section 9(1)(c) and (d) I propose to make an order, in addition to those already mentioned, and instead of an order for a periodical allowance, for payment by the pursuer to the defender of six instalments of capital. The first, in the sum of £4,000, is to be paid within two weeks of the date of decree. The remaining five instalments, in the sum of £2,000 each, are to be paid at six-monthly intervals commencing on the date six months after the date of decree. The total amount of these sums broadly reflects the sums sought by the defender by way of periodical allowance but gives effect to section 13(2) of the 1985 Act and appears to me to allow the defender greater flexibility with regard to financial planning during the three years following divorce.
Orders to be pronounced with regard to financial provision
[48] In accordance with the foregoing Opinion I shall make the following orders:
(i) an order for transfer of the defender's right, title and interest in the heritable property at 54 Berryhill Crescent, Wishaw to the pursuer;
(ii) an order for transfer of the defender's interest in the Elddis caravan to the pursuer;
(iii) an order for payment to the defender by the pursuer of a capital sum of £166,114;
(iv) an order for payment to the defender by the pursuer of a further capital sum of £14,000 payable in six instalments: the first, in the sum of £4,000, to be paid within two weeks of the date of decree; and the remaining five instalments, in the sum of £2,000 each, to be paid at six-monthly intervals commencing on the date six months after the date of decree.
[49] I was not addressed on the matter of the time to be allowed by the court for transfer of the defender's share of 54 Berryhill Crescent to the pursuer and for the payment of the principal capital sum by the pursuer to the defender. I would wish to hear from parties on these issues before pronouncing an interlocutor and I shall therefore put the case out By Order for parties' submissions on this matter and on any application concerning expenses.