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MICHAEL KENNETH WARD v. MARGARET THERESA MORRISON OR WARD

F622/07.

SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT ABERDEEN

JUDGMENT OF SHERIFF D.J. CUSINE

in the cause

MICHAEL KENNETH WARD, residing at 103H The Gallowgate, Aberdeen, AB25 1BY

Pursuer

against

MARGARET THERESA MORRISON or WARD, residing at 10 Kingswood Avenue, Kingswells, Aberdeen, AB15 8AE

Defender

ABERDEEN, 17 JUNE 2008.

The sheriff, having resumed consideration of the whole cause:

(A) FINDS the following facts to be admitted or proved:-

  • The parties were husband and wife. They were married in Glasgow on 2 July 1976 and divorced on 9 April 2008. There are no children of the marriage under the age of 16. The parties separated on 5 March 2004. They have not lived together, nor had marital relations since that date.
  • The pursuer lives in rented accommodation in Aberdeen for which he pays £8,500 per annum; the defender lives in the former matrimonial home, at 10 Kingswood Avenue, Kingswells, Aberdeen, AB15 8AE
  • The pursuer pays one-half of the insurance for that property at the rate of £21 per month and one-half of the gardener's bills.
  • The pursuer is 60 years of age and is a process engineer who used to be employed by a company called Brooksyn. Until the date of separation, the parties' income consisted of a dividend from shares in that company which were held equally between the pursuer and the defender, and that dividend was shared equally by the parties, but the pursuer paid the tax on that dividend.
  • The defender continued to be a shareholder for about 10 months after the date of separation. Her only source of income was the dividends from the pursuer's company.
  • When the pursuer ceased to be employed by Brooksyn, he set up his own company, Ward Processing, in 2006. He paid £700 per week into the defender's bank account which was an amount similar to the dividend which she used to receive from Brooksyn. That amounted to £36,400 gross per year.
  • The pursuer's tax returns show that in the year to 5 April 2005, he received £41,087 net as a dividend and £9,194 net from employment. In the year to 5 April 2006, he received £70,944 net as a dividend and £9,749 net from employment. In the year to 5 April 2007, he received £93,230 net as a dividend and £7,467 net from employment.
  • In November 2006, the pursuer had a contract with M & M Recruitment Consultants for one year which remunerated him at the rate of £73.50 per hour. He worked 45 hours per week and took only 3 weeks off. The gross amount which he would have earned was £158,760. The net figure would have been in the region of £108,000.
  • The only other income of the pursuer was and is a pension of £1,696 per annum, which was split equally between the parties. The pension fund paid out £8,000 in 2003 and so was already in payment at the date of separation. The pursuer ceased to pay into the pension fund about 10 years ago.
  • The pursuer's company gets work through agents. A typical contract may run for a year, but with a notice period of 5 days. Some of the work is only temporary and the market is volatile, and if he does not work, he does not get paid.
  • The pursuer does not intend to work for any longer than is necessary. He had cancer in 1991 and as a result, had his spleen removed. He is prone to infection and cannot work abroad. He had a stroke in 2003. He has an under-active thyroid and tires easily. As a result of these illnesses, the pursuer was off work for some time. The proceeds of the pension were used to pay the council tax on the matrimonial home when the pursuer was not working.
  • The parties' daughter is 21. She in unable to look after herself and lives with the defender. From 2004 onward, the pursuer gave his daughter £50 per week. In addition, he paid for blood test to be done for her which had to be sent abroad. On 25 February, 2008, the daughter returned £9,640 to the pursuer, saying that she did not want his money. He has not encashed the cheque and is willing to repay his daughter.
  • The defender will have received state pension as from May 2008, the basic rate of which is £90.70 per week. She may be entitled to other benefits, but has not inquired into this. She was diagnosed in 2000 as suffering from cervical spondylosis. She has little prospect of being employed. She looks after the parties' daughter, who does not make any contribution to her mother.
  • The defender's monthly outgoings amount to £1,561.05.
  • The defender does not wish to purchase a house in Kingswells where she currently lives. In her opinion, it would be more convenient for her and her daughter to live in Aberdeen.
  • The value of the matrimonial property at 5 March 2004, with the exception of the matrimonial home, was as follows:

Pursuer Defender

Motor vehicles 9,040 14,100

Stamp collection 2,485

Prudential 238MU886 13,194

Prudential 354CU621 1,443

Prudential 125BU879 9,769

Prudential 954688-10 24,212

NPI Pension 28,466

SERPS 7,284

Total 98,561 14,100.

  • The total value of the matrimonial property, with the exception of the matrimonial home, at 5 March 2004 was £112,661.
  • The pursuer has retained all of the assets listed in Finding-in-Fact 16 with the exception of the defender's motor vehicle, which she has retained.
  • The current value of the matrimonial home is £320,000, and the parties are agreed that that value is "the appropriate valuation" as at 5 March 2004.
  • That value is based on a report by Messrs J & E Shepherd is accepted as being true and accurate.
  • In order to purchase another suitable property, the defender would require to pay between £180,000 and £190,000. According to information provided by Aberdeen Solicitors' Property Centre, prices for such properties range from £145,000 to £211,000.

(B) FINDS IN LAW

1. That the relevant date for the purposes of section 10 of the Family Law (Scotland) Act 1985 is 5 March 2004.

2. That the defender is not entitled to an award of a periodic allowance.

3. That the defender is entitled to an award of a capital sum.

4. In all the circumstances, the defender is entitled to payment of the sum of £42,231 in terms of section 9(1)(a) of the Family Law (Scotland) Act 1985 and the sum of £36,000 in terms of section 9(1)(d) of said Act.

THEREFORE Sustains the pursuer's second, fourth and fifth pleas-in-law, and the defender's first plea-in-law to the extent of granting decree for payment by the pursuer to the defender of a capital sum of Sixty thousand, two hundred and thirty-one pounds, (£60,231) being the sum of Forty-two thousand, two hundred and thirty-one pounds (£40,231) to which she is entitled under section 9(1)(a) of the Family Law (Scotland) Act 1985, and Thirty-six thousand pounds (£36,000) to which she is entitled under section 9(1)(d) of said Act, under deduction of the sum of Eighteen Thousand pounds (£18,000) which the pursuer ought to have paid to account in terms of the Interlocutor dated 9 April 2008; Repels all other pleas, except in so far as already dealt with; Ordains the pursuer to pay the said sum of Sixty-thousand two hundred and thirty-one pounds (£60,231) to the defender within seven days of the date of settlement of the sale of the said matrimonial home with interest thereon from that date at the rate of eight per centum per annum until payment; Reserves meantime all question of expenses; Quoad ultra, Continues consideration of the cause to the Procedural Roll on 25 June 2008 at 9.45 am.

NOTE.

The pursuer was represented by Ms Innes, advocate and the defender by Mr Cameron, solicitor. Evidence was given by the pursuer on 28 February 2008 and by the defender on 9 April 2008. There were no other witnesses.

The parties separated at 5 March 2004, "the relevant date." They have agreed that the matrimonial home should be sold.

  • Submissions for the pursuer.

The pursuer moved the court:

1. To grant decree of divorce;

2. To grant an order for sale in terms of the pursuer's second crave; the net free proceeds of sale being divided equally between the parties;

3. To grant decree for payment of £78,231 by the pursuer to the defender, the said sum to be paid in two instalments as follows:

a. £18,000 within 4 weeks of decree;

b. The remaining balance of £60,231 to be paid from the pursuer's share of the net free proceeds of sale within 7 days of the date of settlement of sale of the matrimonial home;

with interest at the rate of 8% per annum from the date each instalment falls due until it is paid.

4. To reserve the issue of expenses meantime.

Decree of divorce was granted under the Divorce (Scotland) Act 1976, section 1(2)(e) on the ground of two years' non-cohabitation. That was based on the Affidavit of the pursuer (No. 18 of Process) and the Affidavit of John Paul Ward. (No. 19 of Process.)

An order was made for the sale of the matrimonial home, and it was submitted that there should be an equal division of the net free proceeds of sale in the first instance although subject to payment of at least part of the capital sum. In relation to the payment of a capital sum, it was accepted that the pursuer should be found liable to pay a capital sum to the defender. The appropriate sum submitted on behalf of the pursuer was £78,231, divided as follows:

  • £42,231 in respect of the defender's claim in terms of section 9(1)(a) of the Family Law (Scotland) Act 1985 ("the 1985 Act"). This is agreed.
  • £36,000 in respect of her claim in terms of section 9(1)(d).

The issues between the parties are (i) whether an award should be made in terms of section 9(1)(d) or (e) of the 1985 Act, and, if so, how that award should be quantified, and (ii) whether any award should be made of a periodic allowance, and if so, for how long.

My attention was drawn to the following provisions of the 1985 Act:

Section 8(1):

"In an action for divorce, either party to the marriage [...] may apply to the court for one or more of the following orders -

(a) an order for the payment of a capital sum to him by the other party to the action;

(aa)[...]

(b) an order for the making of a periodical allowance to him by the other party to the action.

[...]"

Section 8(2):

"Subject to sections 12 to 15 of this Act, where an application has been made under subsection (1) above, the court shall make such order, if any, as is -

(a) justified by the principles set out in section 9 of this Act; and

(b) reasonable having regard to the resources of the parties."

Section 9(1)(d):

"A person who has been dependent to a substantial degree on the financial support of the other person should be awarded such financial provision as is reasonable to enable him to adjust over a period of not more than three years from:

(i) the date of the decree of divorce, to the loss of that support on divorce [...]."

Section 9(1)(e):

"A person who at the time of the divorce [...] seems likely to suffer serious financial hardship as a result of the divorce [...] should be awarded such financial provision as is reasonable to relieve him of hardship over a reasonable period."

Section 11:

(1) In applying the principles set out in section 9 of this Act, the following provisions of this section shall have effect.

[...]

(4) For the purposes of section 9(1)(d) of this Act, the court shall have regard to-

(a) the age, health and earning capacity of the person who is claiming the financial provision;

(b) the duration and extent of the dependence of that person prior to divorce [...];

(c) any intention of that person to undertake a course of education or training;

(d) the needs and resources of the persons; and

(e) all the other circumstances of the case.

(5) For the purposes of section 9(1)(e) of this Act, the court shall have regard to-

(a) the age, health and earning capacity of the person who is claiming the financial provision;

(b) the duration of the marriage[...];

(c) the standard of living of the persons during the marriage [...];

(d) the needs and resources of the persons; and

(e) all the other circumstances of the case."

Section 13:

(1) An order under section 8(2) of this Act for a periodical allowance may be made-

(a) on granting decree of divorce [...];

(b) within such period as the court on granting the decree may specify; or

(c) after such decree where--

(i) no such order has been made previously;

(ii) application for the order has been made after the date of decree; and

(iii) since the date of decree there has been a change of circumstances.

(2) The court shall not make an order for a periodical allowance under section 8(2) of this Act unless-

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

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

(3) An order under section 8(2) of this Act for a periodical allowance may be for a definite or an indefinite period or until the happening of a specified event.

(4) Where an order for a periodical allowance has been made under section 8(2) of this Act, and since the date of the order there has been a material change of circumstances, the court shall, on an application by or on behalf of either party to the marriage or his executor, or as the case may be either partner or his executor, have power by subsequent order-

(a) to vary or recall the order for a periodical allowance;

(b) to backdate such variation or recall to the date of the application therefor or, on cause shown, to an earlier date;

(c) to convert the order into an order for payment of a capital sum or for a transfer of property.

[...]

(7) An order for a periodical allowance made under section 8(2) of this Act-

(a) shall, if subsisting at the death of the person making the payment, continue to operate against that person's estate, but without prejudice to the making of an order under subsection (4) above;

(b) shall cease to have effect on the person receiving payment-

(i) marrying,

(ii) entering into a civil partnership, or

(iii) dying,

except in relation to any arrears due under it.

Section 27(1):

"'resources' means present and foreseeable resources"

Counsel for the pursuer submitted the following in relation to his contributions since the date of separation.

Since the date of separation (5th March 2004), the pursuer has been making generous contributions to support the defender:

  • Initially after the separation, dividends were paid to the defender. She was an equal shareholder in the company run by the pursuer, but was not working.
  • Once she ceased being a shareholder in the company, he continued to make payments at the rate of £700 per week. This payment was very similar to half of the dividend at the time.
  • The defender ceased to be a shareholder in the company for tax and economic reasons at the time, not to reduce the defender's income, and this was evidenced by her continued receipt of payments at a similar level.
  • He has maintained that payment to date. This equates to £3,034 per month or £36,400 per annum (tax free).
  • He makes additional payments -

(i) half of a small pension which was in payment at the rate of £849 per annum;

(ii) half of the home insurance (£23.58 per month);

(iii) half of the gardener's fees;

(iv) ad hoc payments

· The pursuer was also making payments to his daughter £50 per week. He also referred to making payments for blood tests to be sent abroad in connection with her illness.

· In February 2008, the pursuer received a cheque of £9,460 drawn on an account in the name of his daughter which was said to be a refund of the maintenance which he had paid. This would have covered the whole period since the parties separated. It indicates either that the funds have not been used by the parties' daughter to support herself and have been saved up by her, or that she and the defender have another source of capital from which to make that repayment.

· The pursuer has not cashed that cheque as he intends to continue making payments as he considers that it is not relevant to the dispute between him and the defender.

In relation to the defender's position post-divorce, it was submitted that the following ought to be taken into account:

(a) She will require to purchase another property (as will the pursuer).

(b) In the event that the matrimonial home sells for the sum of £320,000 (the value placed on it by a surveyor and agreed by the parties), then taken together with the balancing payment due to her in respect of her section 9(1)(a) claim, she will receive a sum in the region of £202,000.

(c) In order to purchase a property, the print out from the Aberdeen Solicitors' Property Centre (No. 5/3/1 of Process) discloses that she would require a sum of between £145,000 and £211,000 to purchase a property. A property close to the matrimonial home sold for £185,000 in October 2007. The sum of between £180,000 and £190,000 was accepted by the pursuer in cross-examination as being reasonable.

(c) Accordingly, the defender will be able to acquire a suitable property mortgage-free.

(d) The surplus can be invested by her.

In relation to the Schedule of Needs (No. 6/2/1 of Process), the following points were made:-(i) there was no vouching produced for the stated figures; (ii) some of the outgoings are also for the daughter and the pursuer is making contributions directly to her; (iii) even if it were accepted that the defender's needs were in the region of £1,500 per month, that is less than half of the amount which has been paid to her by the pursuer since separation; (iv) the defender will receive income from the state pension in May 2008; (v) the basic state pension is £90.70 (previously £87.30) per week. She may be able to claim pension credits - standard minimum guaranteed £124.05 (previously £119.20). This will be a minimum income of £393 per month or, with pension credits, £537.55 per month.

It was submitted therefore that the defender's needs would be met in part by her pension income. In the light of the Schedule and the known income which the defender will receive, the pursuer submitted that a reasonable sum would be £1,000 over 3 years totalling £36,000. The ability of the defender and her daughter to obtain state benefits in relation to their incapacity for work is not known. The lack of vouching produced indicates that the defender has been less than candid about her financial circumstances. Given the stated level of her need set against the sums which she has been receiving over the past 4 years, it is not unreasonable to expect that she has been able to make savings from those sums. Her full current resources are not disclosed.

So far as the pursuer is concerned, he is 60. His date of birth is 19th September 1947. He has had health problems: i.e. non-Hodgkins Lymphoma in 1991 which led to loss of spleen, and a stroke in 2003. He has an underactive thyroid, leading to tiredness.

Furthermore, If he does not work, he does not get paid. The notice period on his contracts is very short. He recently had a contract terminated after a notice period of only four days. At the time of giving evidence, he had a short-term contract for four to five weeks. A recent contract (No.5/4/1 of Process) discloses a notice period of 5 days. He wishes to stop working. He requires to purchase a property. He has rented a property since separation. The balance which he will recover from the sale of the house will not be sufficient to allow him to do that - he will therefore require to borrow. He has limited pension provision. Figures were put to him in cross-examination for which there was no evidence and therefore cannot be relied upon.

It was submitted that the principles should be applied as follows. In terms of section 9(1)(d), it was acknowledged that the defender has a claim - i.e. that she has been dependent to a substantial degree on the support of the pursuer and that she requires to adjust to the loss of that support on divorce. However, section 13(2) emphasises the "clean break" principle - periodical allowance is only to be awarded if the court is satisfied that an order for payment of a capital sum would be inappropriate or insufficient to satisfy the requirements of section 8(2) - i.e. that the financial provision awarded as a whole is justified by the principles set out in section 9 and reasonable having regard to the resources of the parties. In this case, capital will be available on the sale of the house from which a payment of additional capital can be made. Examples of cases involving capital being viewed as sufficient or significantly limiting an award in terms of section 9(1)(d) include McConnell v McConnell 1997 FamLR 97 and 108 and Bolton v Bolton, unreported 17th February 1995.

The sum submitted by the pursuer was based on a calculation of £1,000 over a period of 3 years which is the maximum period over which an award could be made in terms of section 9(1)(d).

A capital payment is beneficial for both parties. It gives both certainty. Having been paid, it would not be subject to variation as an ongoing payment would be. Both parties can budget for the future.

It is known that the pursuer will retire shortly. His resources are finite. His ability to meet the current payments is solely based on his income - which he is able to generate only when he is working and in relation to that, there is a lack of security. He has suffered ill-health and continues to have health problems. His pension provision is limited. He is not in a position to make ongoing periodical payments long-term.

Quantification

In terms of the quantification of any award under section 9(1)(d), the pursuer's calculation of what is reasonable is based on an assessment of the defender's Schedule of needs taking into account the income which she will receive by way of state pension from May 2008.

Although the defender seeks £2,500 per month in her crave, that is clearly significantly in excess of the needs put forward by her and takes no account of any income which she will receive. The sum set out in her own Schedule ought to be taken as the absolute maximum of any calculation of her monthly needs and should then factored down having regard to the fact that the sums in the Schedule are unvouched, that they may reduce on sale of the matrimonial home, that she may be able to secure a contribution from her daughter to shared costs and that she will obtain income in May 2008. That then sets the starting point for a consideration of what is reasonable having regard to the defender's needs.

The parties have now been separated for 4 years, over which period, generous sums have been paid by way of aliment. The comparison of the schedule of needs with the amounts which have been paid to the defender over the same period indicates that she must have been able to make significant savings from the payments. The lack of vouching produced suggests a lack of candour on the part of the defender. The defender has had ample time to adjust to the separation and to the loss of the financial support of the pursuer.

In all of the circumstances, £1,000 is a reasonable sum.

Section 9(1)(e)

Taking into account the sums which the defender will receive on divorce in terms of the sale of the house, her claim under section 9(1)(a) and the additional sums which she will receive in terms of section 9(1)(d), it cannot be said that she is likely to suffer "serious financial hardship" on divorce.

She will have the ability to purchase a property mortgage free and she will have surplus capital to invest. The fact that she may receive income from that is relevant - Tyrrell v Tyrrell 1990 SLT 406 at 408L to 409D. That is apart from any additional capital which she may now have and which has not been disclosed. In contrast, the pursuer will not be in a position to purchase property mortgage-free, but will be reliant on borrowings in order to obtain suitable accommodation. The remainder of his capital is tied up in pensions which will generate little income.

The factors set out in relation to the pursuer's finite resources and the insecurity of his financial position are also relevant to a consideration of this principle. It is not reasonable, having regard to his resources to make an award in terms of section 9(1)(e). See, for example, Savage v Savage, 1993 GWD 28-1779 in which no award was made under 9(1)(e) even although the wife had been certified by her GP as unfit for work - regard was had to the capital sum which she was awarded £63,600 and to the husband's resources.

Instalments

The pursuer's position is that the monthly payments of aliment should cease on divorce. To provide the defender with funds between the date of divorce and the date of sale of the matrimonial home, he offers to pay the sum of £18,000 within 4 weeks of the date of decree of divorce, with the remaining capital sum coming from his share of the sale proceeds of the matrimonial home. It would be prudent to allow 7 days from the date of settlement of sale for this payment to be effected lest the conveyancing solicitor is unable to effect the transfer to the defender on the date of settlement itself.

Instalment payments are provided for in:

Section 12(3):

"The court, on making an order under section 8(2) of this Act for payment of a capital sum, may order that the capital sum shall be payable in instalments."

Interest

Interest is sought from the date of decree. It was submitted for the pursuer that interest ought to run from the date of payment - he does not have the resources to make that payment, and therefore it has to come from the sale proceeds of the house. Furthermore, he has continued to make payments of aliment meantime - in that event, interest should run on late payment only. (Sweeney v Sweeney (No 2) 2006 SC 82)

Expenses

Should be reserved meantime

2. Submissions for the defender.

It was submitted that the relevant provisions of the 1985 Act are sections 8, 9(1)(a)(d) and (e), 11(4)(a) to (d), 11(5), and 13(1)and (2).

Reference was made to Little v. Little 1990 SLT 785 in which the Lord President (Hope) had emphasised the wide discretion which the 1985 Act confers on the court at first instance. (at 786-787)

The evidence disclosed that the defender is at an economic disadvantage in that throughout the marriage, i.e. 28 years, she had been entirely dependent upon the pursuer. Accordingly, she will suffer financial hardship in that she has been used to a high standard of living and will now have to seek alternative accommodation which is likely to cost in the region of £190,000 at least. The parties' daughter is entirely dependent upon the defender.

The pursuer is a high earner, and is in secure employment. It is likely that, despite his previous health problems, he will continue to work for some time. It is not credible for the pursuer to say that he has no capital. If he earned a net figure of £108,000 from his contract and paid the defender £36,000, and paid £8,500 for rent, that leaves him with £63,500.

It was submitted that if it is foreseeable that the pursuer would work for another 5 years, he would earn a gross figure of £850,000. In that connection, reference was made to Cunniff v. Cunniff 1999 SC 537.

It was further submitted that the elements in section 9(1) (d) or (e) are present and that, in this case, a simple division of the assets would be inequitable, as the defender would not have any other assets. Reference was made to sections 9(1)(d), 11(4), and 13(1) and (2). The provisions of subsections (a) to (d) of section 11(4) favoured the defender, because of the prospect of a serious financial problem. It was submitted that only a capital payment in the order of £300,000 would justify not making any other award.

So far as periodic allowance is concerned, the defender's statement of outgoings was a statement of the bare minimum. Were she to receive £200 per month, she would be short of £480. In that connection, the defender sought to distinguish Tyrrell v. Tyrrell 1990 SLT 406 which had been referred to by the pursuer.

Decision.

In this case, I am not satisfied that either party has made a full disclosure of the true financial position. The pursuer earns a significant amount from his contracts, and even allowing for tax and the sum of £36,000 paid to the defender, he is left with £72,000. Out of that, he pays rent of £8,500 and if he has, as he says, no capital other than pension which produces little income, it follows that the remainder of that sum, i.e. around £63,000 is used on food, travel, clothing etc.

Turning to the defender, she received over a period of years, a dividend from the pursuer's company, or the equivalent, which amounts to £36,000, tax free. Her daughter is dependent on her and yet there was no evidence of any contribution being made by the daughter to the defender for their upkeep. It is not disputed that the daughter was able to return a cheque for £9,640 to her father and one can only assume that she did not need it. Leaving that aside, the defender's position is that she has no capital despite being in receipt of a significant sum from the defender for a number of years.

I am not prepared to speculate on what may not have been disclosed to the court, and can take into consideration only what was produced, or spoken to in evidence, and because of the defender's attitude to seeking additional state benefits, the fact that the daughter seems to be able to do without a significant payment from her father, and, in addition, would seem to be entitled to benefits in her own right, I consider that it would be inappropriate to make an award for payment of any capital sum under section 9(1)(e), and so, it follows that any capital sum awarded is under section 9(1)(d). It would also be inappropriate even where, as here, the defender is unable to work, provided a reasonable award could be made under section 9(1)(d). That was the approach taken by Lord Sutherland in Savage v. Savage (1993 GWD 28-1779)

The 1985 Act provides in section 8 that a capital sum may be paid by one of the parties to the other, along with a periodic allowance. In determining whether such payment or payments should be made, the principles set out in section 9 have to be taken into account. It is accepted by the parties that the relevant ones for this action are section 9(1)(a) i.e. fair sharing of the net value of the matrimonial property, section 9(1)(d) the dependency of the defender on the pursuer and section 9(1)(e) and serious financial hardship to be suffered by the defender as a result of the divorce. The court must also take into consideration the factors listed in section 11(4) (a),(b), (d) and (e), and that I have done.

In determining whether or not a periodic allowance ought to be awarded, the court must, in terms of s. 13(2) be able to justify that in terms of section 9, in this case subsections (d) or (e), and it must be satisfied that the award of a capital sum would be, in this case, insufficient. In other words, the Act favours a "clean break" wherever that is appropriate.

(a) periodic allowance.

The 1985 Act, in effect, sets its face against the making of a periodic allowance, unless it can be justified under section 9, and that the payment of a capital sum would be either inappropriate or insufficient. It is accepted by the parties that it is appropriate that a capital sum should be paid by the pursuer to the defender and so the only issue is whether that sum would be insufficient. The defender's position is that any capital award of less than £300,000 would be insufficient, and it was accepted that a periodic allowance could be restricted to a maximum of 3 years (section 9(1)(d)) or could be for a reasonable period. (section 9(1)(e)).

Given the view which I have expressed about disclosure, were I minded to make an award of a periodic allowance, it would be for a maximum of 3 years. If that were done, it could be varied or recalled if there were a material change of circumstances. (section 13(4)). Should the defender apply for some or all of the other benefits to which she seems to be entitled, (I cannot see any good reason for the defender not doing that), that could amount to such a material change. It would seem to me odd to make such an award which might, within a very short period, be varied to the defender's detriment. It would seem equally odd to make an award of a periodic allowance which might allow the defender to delay applying for such additional benefit. It may be that the pursuer will retire soon, and if that happened, that could also be a material change of circumstances, resulting in a reduction in the amount of any periodic allowance. These factors persuade me that the making of a periodic allowance would not serve the defender well, and that it would be preferable to make an award of a capital payment.

In addition, the 1985 Act indicates that the award of a capital sum would be the norm and there would, in my view, be a considerable benefit to the defender to be given a capital sum. It would be paid, in part, on the sale of the house, which will probably be put on the market very soon. I assume that she has already received £18,000. The capital sum from the sale would enable her to purchase another property for herself and the daughter without the needs to borrow, and she would be likely to have capital left to do with as she pleases.

In McConnell v. McConnell (1997 Fam. LR. 97), the Lord Ordinary had awarded a periodic allowance, as well as making an award for the payment of a capital sum. The decision, in relation to periodic allowance, was amended by the Inner House on the basis that the Lord Ordinary had not given proper weight to the fact that the pursuer would receive the defender's half share in the matrimonial home and a capital sum of £50,000. In these circumstances, the periodic allowance was reduced from 3 years to 6 months. (1997 Fam. LR. 108) Bolton v. Bolton, (17 February 1995), an unreported decision of Lord Abernethy, is an example of a case in which an award of a periodic allowance was made, but only until the capital and interest was paid. I considered these cases in reaching my decision on periodic allowance. The fact that the parties had been separated for 7 years was a factor which was mentioned by Lord Sutherland in Tyrrell v. Tyrrell (1990 SLT 406) as justifying a reduction in the amount to be paid by way of periodic allowance. It seems to me to be a factor to be taken into account here-the parties have been separated for 4 years--in determining whether or not a periodic allowance should be paid. In that period, the defender has had sufficient time to adjust to the separation and to adjust to an existence which might not involve a continuing contribution from the pursuer.

(b) capital payment.

It is agreed between the parties that the sum of £42,231 should be paid by the pursuer to the defender and, in terms of the Interlocutor dated 9 April, 2008, the sum of £18,000 ought to have been paid to account by the pursuer to the defender within 7 days of the intimation of that Interlocutor to the pursuer. I have no reason to believe that that has not been done. It is agreed that £42,231 represents the defender's claim in terms of section 9(1)(a), and what is contested is whether the remaining figure of £36,000 is sufficient to recognise the fact that, during the marriage, the defender was dependent upon the pursuer to a substantial degree.

In determining the amount to be awarded under section 9(1)(d), I have taken the following factors into account which relate to the period since the parties separated, viz:-. (i) the parties have been separated for 4 years; (ii) the pursuer has paid the defender £36,400 per year since the separation. That represents dividends or an equivalent sum, which, for the defender, has been tax-free; (iii) the pursuer also pays £849 per annum to the defender from a pension, £23.58 per month for the house insurance, and half the cost of gardening bills. He also makes ad hoc payments to his daughter.

In relation to the defender's post-divorce position, she will require to purchase another property, following upon the sale of the matrimonial home. The pursuer will have to do likewise. The matrimonial home has been valued at an agreed figure of £320,000, one- half of which will be paid to the defender. In addition, she will receive the agreed sum of £42,231 as a balancing figure in terms of her claim under section 9(1)(a). The total is £202,231.

The print-out from Aberdeen Solicitors' Property Centre (No. 5/3/1 of Process) indicates that the defender would be able to buy the type of property she needs for herself and the daughter for between £145,000 and £210,000, and, in cross-examination, the pursuer accepted that a figure of between £180,000 and £190,000 would be reasonable. The defender would not need to borrow money in order to finance such a purchase. (Even if the market has now changed and is a "buyer's market," the person who is selling may receive less, but also may pay less on the purchase.)

Looking to the defender's needs, her list of outgoings had no supporting vouchers, but even accepting it as a true position, the monthly total for outgoings of £1,500 is less than half of what the pursuer has paid to her since the date of separation. In addition, the defender ought, by now, to be receiving state pension of £90 per week. Were she to claim pension credits, the minimum weekly figure is £124.05. Accordingly, the defender's monthly income would be at least £393, but with the credits, would be £537.55. Were the defender to be awarded £36,000, the sum offered and contended for by the pursuer, that represents £1,000 per month over a 3-year period. That leaves out of consideration any contribution the daughter might be able to make, or is making, to the upkeep for her and her mother.

Looking to the pursuer's position, he is 60 years, and I accept his evidence that he intends to retire soon, not least on account of his health. While he may have had full employment, the market is volatile, and contracts can be subject to very short periods of notice. If he purchases another property, on his disclosed financial position, he will need to borrow to fund that purchase. That takes account of his receipt of a half share of the proceeds of sale of the matrimonial home, and the payment of the agreed balancing figure under section 9(1)(a).

I have come to the conclusion that the additional capital sum of £36,000 is in all the circumstances reasonable. It follows that the monthly payments of aliment should cease. In reaching that view, I have taken into account that the parties have been separated for 4 years and so the defender ought to have had time to adjust to that, and perhaps to have made some savings from the amounts which she was receiving from the pursuer. I have also taken into account that the pursuer agreed to make a payment to account of a capital award within 7 days of 9 April 2008, thus indicating that he is prepared to adopt a reasonable approach. I have also taken into account the defender's financial position, particularly since the date of separation, and her needs. Her financial position includes her state pension and an entitlement to claim for pension credit. I have balanced these factors with the pursuer's financial position, his future earning potential and the fact that he will have to borrow money to purchase another property.

For completeness, I have considered the case of Cunniff v. Cunniff 1999 SC 537 which was referred to by the defender. I do not consider that case to be of much assistance as it dealt with the situation in which the husband had deliberately reduced his resources in order to achieve a more favourable settlement in the divorce action. That is not the position here.

Given that the matrimonial home is to be sold, the pursuer ought to be able to pay the defender the remainder of what is due to her within 7 days of the receipt by him of his share of the free proceeds, and interest will run from that date only. (Sweeney v. Sweeney (No. 2) 2006 SC 82.

As requested, I have reserved the question of expenses.