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ELIZABETH McLAUGHLIN v. MICHAEL McLAUGHLIN

F166/99

JUDGMENT OF SHERIFF FIONA LENNOX REITH, Queens Counsel

in the cause

MRS ELIZABETH BROWN MARTIN or McLAUGHLIN

Pursuer

against

MICHAEL JOHN DAVID McLAUGHLIN

Defender

__________

Act: Pieri, Advocate; Balfour & Manson, Solicitors, Edinburgh

Alt: Morris; Condies, Solicitors, Perth

PERTH, 30th January 2001

The Sheriff, having resumed consideration of the cause, finds in fact:

  • The pursuer resides at 5508 Wild Plum Drive, Loveland, Colorado 8037, United States of America. She is 52 years of age. She is unemployed. The defender resides at Redwood, Kinfauns, Perthshire ("Redwood"). This is the former matrimonial home. He is 51 years of age. He is a company director of three companies.

  • The pursuer and the defender were married at Stirling on 30th September 1971. There are no children of the marriage. After the marriage the parties lived together until 29th November 1992 when the defender left the pursuer. They have not lived together or had marital relations since then. There is no prospect of a reconciliation between the parties. The marriage has broken down irretrievably.

  • The net value of the matrimonial property as at the relevant date (namely 29th November 1992) is as follows:

    • Redwood (property in joint names)

    £130,000

    Less mortgage

    £80,539.66

    £49,460.34

    The defender's shareholding in A Proctor Insulation Ltd (in hands of defender)

    £2,340

    The defender's shareholding in Redwood (Scotland) Ltd (in hands of defender)

    £1,000

    The defender's pensions with Scottish Widows, Allied Dunbar and Standard Life (in hands of defender)

    £43,814

    The defender's Save and Prosper Annuity (in hands of defender)

    £1,071

    The pursuer's Civil Service Pension (in hands of pursuer)

    £34,810

    The pursuer's motor car (in hands of pursuer)

    £1,400

    Pursuer's two policies with Scottish Provident (in hands of pursuer)

    £3,352

    £137,247.34

    Less overdrawn joint bank accounts

    £4,039

    TOTAL:

    £133,208.34

  • The title to Redwood is in the joint names of the parties equally between them. They are accordingly co-proprietors. They moved into Redwood in about April 1986. Prior to that they had lived at 2 Laurel Bank, Muirhill Terrace, Perth. The title to that house had also been in their joint names. The parties had also had a mortgage in relation to that house. The first house was sold for a profit. The net free proceeds from the sale of that house were put towards the cost of building Redwood.

  • After the defender left Redwood on 29 November 1992, he went to stay in a bed and breakfast establishment in Perth for about three weeks. He then obtained the lease of a two-bedroomed flat in Tay Street, Perth. In December 1992 the defender asked his partner, Maureen Phillips, if she would come to live with him in the flat in Tay Street. She joined him in January 1993. On 31 December 1993 their daughter, Lauren, was born. In 1994 they took the lease of East Cottage, Pitmurthly, Redgorton, near Perth. This had two bedrooms. They lived there until they moved back to Redwood on 28 December 1998.

  • In 1993 the defender's outgoings (excluding rent) in respect of the flat at Tay Street totalled £871.38. In 1994, the defender's total outgoings (including rent) in respect of the flat at Tay Street and the cottage at Pitmurthly amounted to £6,740.21. The equivalent figures for 1995, 1996, 1997 and 1998 in relation to the cottage at Pitmurthly were £6,214.47, £7,016.86, £6,551.70 and £6,184.17 respectively.

  • The level of outgoings incurred by the defender in relation to the let by him of the said properties was reasonable and in line with the costs of rented accommodation in the area. This represents the approximate level of outgoings that the pursuer would have required to meet for reasonable rented accommodation in the area during this period had she not continued to stay at Redwood.

  • Maureen Phillips was also in employment when she and the defender were living at Pitmurthly. She continues to be employed in an administrative post with the CGU Insurance in Perth. She has always had her own bank account.

  • Following the said separation on 29th November 1992 the pursuer continued to reside at Redwood until late December 1998 when she went to Australia with her partner, Mr James Kaylor. She had known Mr Kaylor since 1995. On or about 28 December 1998 the defender moved back into Redwood. He has lived there since then with his partner, Maureen Phillips.

  • Whilst the pursuer was living at Redwood following the said separation she looked after the house. She kept it clean and tidy. She made arrangements for tradesmen. She looked after the day to day running of the house. She arranged for any maintenance or repairs required, the cost of which was met from the parties' principal joint bank account with the Bank of Scotland. She also arranged for a gardener to take care of the garden. When Redwood was inspected by Mr Thomas Hannah, Chartered Surveyor, on 14 February 1998 the outside of Redwood was in need of re-painting. This was not however a factor which affected the valuation of Redwood. When the defender moved back into Redwood in December 1998 he had the outside of the house painted and had some of the windows replaced. He also did some redecoration in the house.

  • The value of Redwood was no less than £130,000 as at November 1992. The fair market value of the house as at 14th January 1998 was £190,000. That represents the realisable price which it is more likely than not that the house would have achieved on the open market as at that date as between a willing seller and a willing buyer. This is on the assumption that the house was in good condition at the time. It was in good condition when inspected for valuation purposes on 14 January 1998. The fair market value of the house as at December 1998 was £200,000 making the same assumptions. The house had not deteriorated to any material extent by then. The house has also not deteriorated to any material extent since December 1998. The fair market value of the house as at June 2000 was £210,000 making the same assumptions. As at 8 August 2000 the market value of Redwood was no less than the value as at June 2000.

  • Redwood was as at the relevant date subject to a secured loan of £80,539 with the Bank of Scotland. As at December 1998 the outstanding mortgage was £68,612; as at June 2000 it was £64,682.17, and as at August 2000 it was £64,946.67. The defender paid the difference between the figures outstanding as at December 1998 and August 2000. The difference between these two figures is £3,665.33. He met this personally in addition to the interest payments which fell due in that period in relation to the mortgage. The mortgage is an interest only mortgage. However, the sums paid towards the mortgage since 1992 have exceeded the total amount of interest due. This has therefore resulted in the trend since about February 1993 being a steady fall in the principal sum due to the Bank of Scotland under the secured loan. The mortgage is secured by the defender's pension with A Proctor Insulation Ltd. No. 6/5/11 of process is a statement prepared by the Bank of Scotland showing the sums due and paid by the parties in terms of the secured loan in their favour from time to time between June 1990 and August 2000. The figures shown on the statement as being the sums outstanding and paid in relation to the secured loan are true and accurate as regards the period from March 1993 to August 2000. However, this statement omits the sum of £893.62 which represents a sum of interest due by the parties and which was ultimately debited to the loan account in February 1993.

  • The said valuation figures do not take into account of any expenses associated with achieving a sale of Redwood. If local agents were to be used, such expenses would be likely to be of the order of £3,000 to £4,000. If an Edinburgh firm was to be used, such expenses could exceed £5,000.

  • Redwood is a unique Architect designed detached house of a modern style. The parties had it built. Construction was started in 1985. It was completed in 1986. The parties moved into the house that year. They were both able to have an influence on the internal and external appearance of the house. It is constructed on four levels to a fairly high standard. The accommodation includes three bedrooms, a dining room, a large sitting room and a study. It is largely of timber construction with large areas of glass. It is set in about 1 3/4 acres of garden ground. There is also a large detached garage. The finished appearance of the house was as a result of input from both parties in addition to the architect. The style of the house would be likely to appeal to a narrower potential market. It is situated in the former grounds of Kinfauns Castle. If the defender now had to move out of Redwood he would look for something similar in the same type of location if he could. At present the defender also uses Redwood for business purposes as he finds that convenient. Kinfauns is convenient for the motorway system. He travels a lot. He has a small office there in which he spends about twenty hours a week. He has business telephone, fax and e-mail facilities at the house. He has other business premises in Blairgowrie. He spends between about fifteen and twenty hours a week there. When the defender was not living at Redwood between the date of the separation and December 1998 he did not use Redwood for business purposes. He instead used his rented accommodation in the same way. If he were now to move from Redwood he could make alternative business arrangements.

  • When the parties' were married the pursuer was working full-time as an Administrative Assistant at Strathclyde University. After a period of unemployment in 1973, between that year and 1975 the pursuer was employed full-time by Perth City Council. In 1975 she joined the Civil Service. She was employed full-time in the Benefits Agency part of the Department of Social Security ("DSS") until January 1989. She then went part-time. This was with the agreement of the defender. He had been happy with that. She was still working part-time with the DSS as at the date of separation. She returned to full-time employment in April 1997. After that she earned about £18,000 per annum gross. Since leaving the United Kingdom in December 1998 to accompany Mr Kaylor to Australia in connection with his work the pursuer has been on unpaid leave. She does not expect to return to that employment. After living in Australia for about a year the pursuer and Mr Kaylor moved to Canada for a period. They have now moved to Colorado in the United States. They plan to make their home there permanently. Mr Kaylor is an American citizen. He is employed as a marketing engineer. He has been supporting the pursuer since she gave up her employment in December 1998. She has not sought or obtained any employment since then. She is not planning to look for work in the United States. She anticipates that Mr Kaylor will continue to support her.

  • The pursuer did not return to full-time employment until April 1997. She did not look for alternative employment outside the DSS. She had not wished to give up the security of her employment with the Civil Service in the DSS. She had enjoyed her work there. She had also not wished to jeopardise her civil service pension. An opportunity for full-time employment then arose in the Child Support Agency part of the DSS in April 1997. She took that opportunity to return to full-time employment.

  • After the parties' marriage and until about 31 December 1998 the salaries received by both parties were paid into a joint bank account with the Bank of Scotland ("the principal joint account"). As at about said date the defender arranged for the principal joint account to be transferred to his name alone. With the exception of expenditure met from a subsidiary joint account with the Bank of Scotland, all of the parties' respective expenses had been paid from the principal joint account until then. These expenses included (a) the mortgage repayments and other payments associated with Redwood such as buildings and contents insurance, life insurance policy premiums and payments for a mortgage protection policy, (b) the defender's expenses associated with the lease of the flat at Tay Street and the house at Pitmurthly, (c) bank charges and interest, (d) maintenance costs in relation to Redwood, (e) the electricity and gas bills incurred at Redwood and (f) the pursuer's liability for Council Tax whilst living at Redwood. The defender also drew cash from the account for his living expenses and wrote cheques from the account. These expenses are all correctly detailed on the A3 sheets comprising part of No. 6/4/9 of process which are true and accurate schedules prepared by the defender of what he recorded as having been the income and spending of both parties in the period from December 1992 until January 1999.

  • After they were married the defender took responsibility for looking after the parties' financial affairs. This continued even after the separation until about 31 December 1998 when the pursuer received her last salary cheque before going on unpaid leave. Both parties continued to use the principal joint account until December 1998 for their own respective expenses as before. This included the purchase by the defender of a ring for Maureen Phillips. He also gave her £200 from the account in January 1993 to buy food and other household items.

  • The pursuer had an Access card, the payments for which were met from the principal joint account. The defender had a similar Visa card. This was also funded from the principal joint account. The sum of £200 per calendar month was paid from the principal joint account into the subsidiary joint bank account. The pursuer used the subsidiary joint account principally for her housekeeping expenses. This also continued until about 31 December 1998. The defender did not use the subsidiary joint account. The parties' had joint liability for any overdraft on the joint accounts. The parties did not operate any other bank accounts. The pursuer has not contributed to the maintenance or upkeep of Redwood since 31 December 1998. The pursuer's name was removed from the joint accounts in December 1998. Since then all payments in respect of Redwood, including mortgage repayments, have been met by the defender personally. Other than by means of access to the joint accounts and the Access card, the pursuer has not sought or received any formal payments of aliment or other form of support from the defender since their said separation.

  • In 1993 the defender's personal expenditure, including rent but excluding other outgoings in respect of the flat at Tay Street, totalled £21,001.56. This was in contrast to the pursuer's total personal expenditure of £6,402.69. In 1994 the defender's personal expenditure, excluding rent and other outgoings in respect of the Tay Street and Pitmurthly properties, totalled £12,329.35 in contrast to the pursuer's total personal expenditure of £6,619.93. In 1995 the defender's personal expenditure, excluding rent and other outgoings in respect of the property at Pitmurthly, totalled £17,430.14 in contrast to the pursuer's total personal expenditure of £6,053.82. In 1996 the defender's personal expenditure, excluding rent and other outgoings in respect of the property at Pitmurthly, totalled £22,938.93 in contrast to the pursuer's total personal expenditure of £6,303.35. In 1997 the defender's personal expenditure, excluding rent and other outgoings in respect of the property at Pitmurthly, totalled £15,599.94 in contrast to the pursuer's total personal expenditure of £8,159.41. In 1998 the defender's personal expenditure, excluding rent and other outgoings in respect of the property at Pitmurthly, totalled £15,030.36 in contrast to the pursuer's total personal expenditure of £9,368.52. All such personal expenditure for both parties (which does not include shared expenditure for common outgoings) was met from the principal joint account.

  • When the pursuer was working part-time she was working for 25 hours a week out of a possible 37 full-time hours. From the date of the separation until 31 December 1992 the pursuer's net income was £662.67. For the same period the defender's net income was £2,045.72. In 1993 the pursuer's net income totalled £8,806.64 and the defender's net income totalled £28,007.07. In 1994 the pursuer's net income totalled £8,836.46 and the defender's net income totalled £28,140.09. In 1995 the pursuer's net income totalled £9,472.97 and the defender's net income totalled £46,595.78. In 1996 the pursuer's net income totalled £9,717.89 and the defender's net income totalled £34,951.53. In 1997 the pursuer's net income totalled £12,955.40 and the defender's net income totalled £30,395.54. In 1998 the pursuer's net income totalled £15,056.67 and the defender's net income totalled £27,815.33.

  • The amount by which the pursuer's net income exceeded her personal expenditure (which does not include her share of common outgoings) in 1993 was £2,403.95. The equivalent figures for the years thereafter through to the end of 1998 were as follows: 1994 - £2,216.53; 1995 - £3,419.15; 1996 - £3,414.54; 1997 - £4,795.99, and 1998 - £5,688.15. The amount by which the pursuer's net income exceeded her said personal expenditure for the years from 1993 through to 1998 inclusive totals £21,938.31.

  • In 1992, from the date of the said separation until 31 December, the pursuer's personal expenditure together with her share of common outgoings as between herself and the defender exceeded her net income by about £269.27. In 1993 the pursuer's personal expenditure together with her share of common outgoings as between herself and the defender exceeded her net income by about £4,991.03. The equivalent figures for the years thereafter to the end of 1998 were as follows: 1994 - £4,829.88; 1995 - £3,042.53; 1996 - £3,342.88; 1997 - £2,433.16, and 1998 - £2,330.53.

  • Accordingly, between the date of separation and 31 December 1998 the differential between the pursuer's total net income (about £65,508.70) and her total expenditure (including her share of common outgoings) totalled about £21,239.26 as shown on the A4 summary sheet comprising part of No. 6/4/9 of process. This shortfall was in effect met by the defender from his total net income (about £197,951.06) over that period. The pursuer's expenditure in the period from the date of the separation until December 1998 was not extravagant. Her living expenses during that period were reasonable.

  • Between the date of the separation and December 1998 the pursuer did not earn sufficient income to meet her own personal expenditure and the reasonable living expenses which would have been associated with living in Redwood, or in reasonable alternative rented accommodation in the area, without financial assistance from someone such as the defender. Accordingly, without the support derived from the defender through the continued operation of the joint accounts the pursuer would not, in the absence of additional income of her own, have been in a position to meet reasonable living and accommodation expenses following the said separation.

  • After the separation, in early 1993, at the pursuer's suggestion, the parties' discussed the possibility of a house being built for her over the garage at Redwood. The intention then was that the pursuer should live in this conversion. The pursuer consulted architects who applied for and obtained outline planning permission. That plan fell through due to the cost involved. The defender had expected to have to pay the pursuer one half of the net value of Redwood at that time. This would have enabled the defender to live in the main house at Redwood if he could have afforded to.

  • As at the date of the separation the defender was employed as a Company Director. He held directorships with two companies. The defender is now a director of three companies. If Redwood were to be sold the defender would able to obtain another mortgage to enable him to purchase another property.

  • In about January 2000 the pursuer was ordered by this Court to pay £8.35 per month in respect of her one half share of the cost of the buildings insurance premiums for Redwood. The pursuer has not made the payments due in terms of the order of the Court. Three rebates of about £65 each due by the DSS to the pursuer in 1998 were paid into the principal joint account in 1999 after it had ceased to be a joint account. The rebates were not forwarded or paid over to her by the defender. There were no further rebates in 2000.

  • The Bank of Scotland consents to any transfer of ownership of Redwood from the parties jointly to the defender alone.

  • The letter dated 4th October 2000 from the Bank of Scotland to Condies, Solicitors, Perth, comprising No. 6/6/1 of process is true and accurate.

Finds in Fact and Law :

  • The marriage between the pursuer and the defender has broken down irretrievably.

  • In all the circumstances it is justified by the principles set out in section 9 of the Family Law (Scotland) Act 1985 and reasonable having regard to the resources of the parties that

    • an order be made transferring to the defender the pursuer's whole right, title and interest in and to the heritable property known as and forming Redwood, Kinfauns, Perthshire, and to ordain the pursuer within one month of the date of this interlocutor to deliver to the defender an executed conveyance of her said right, title and interest; and in the event of the pursuer failing to make, execute and deliver such conveyance and other deeds, to ordain the Sheriff Clerk, Perth to subscribe on behalf of the pursuer such conveyance and such other deeds as may be necessary to give the defender a valid title to the said property; and

    • an order be made for payment by the defender to the pursuer of a capital sum of Fifty one thousand and one pounds (£51,001) Sterling (1) with interest on Twenty four thousand seven hundred and thirty pounds and fifty pence (£24,730.50) thereof at the rate of eight per cent a year from 29th November 1992 until payment, (2) with interest on Two thousand four hundred and four pounds (£2,404) thereof at the rate of eight per cent a year from 31st December 1993 until 31st December 1998, (3) with interest on Two thousand two hundred and seventeen pounds (£2,217) thereof at the rate of eight per cent a year from 31st December 1994 until 31st December 1998, (4) with interest on Three thousand four hundred and nineteen pounds (£3,419) thereof at the rate of eight per cent a year from 31st December 1995 until 31st December 1998, (5) with interest on Three thousand four hundred and fourteen pounds (£3,414) thereof at the rate of eight per cent a year from 31st December 1996 until 31st December 1998, (6) with interest on Four thousand seven hundred and ninety six pounds (£4,796) thereof at the rate of eight per cent a year from 31st December 1997 until 31st December 1998, (7) with interest on Twenty one thousand nine hundred and thirty nine pounds (£21,939) thereof at the rate of eight per cent a year from the date of this interlocutor until payment, and (8) with interest on Four thousand and three hundred and thirty one pounds and fifty pence (£4,331.50) thereof at the rate of eight per cent a year from the date of this interlocutor until payment.

Therefore Sustains the first plea-in-law for the pursuer; Sustains the second and fourth pleas-in-law for the defender; Sustains the third plea-in-law for the pursuer to the extent of £51,001; repels the second and fourth pleas-in-law for the pursuer and the first, third, fifth and sixth pleas-in-law for the defender; Divorces the defender from the pursuer; Orders that there be transferred to the defender the pursuer's whole right, title and interest in and to the heritable property known as and forming Redwood, Kinfauns, Perthshire, Ordains the pursuer within one month of the date of this interlocutor to deliver to the defender an executed conveyance of her said right, title and interest; and, in the event of the pursuer failing to make, execute and deliver such conveyance and other deeds, Ordains the Sheriff Clerk, Perth to subscribe on behalf of the pursuer such conveyance and such other deeds as may be necessary to give the defender a valid title to the said property; Grants decree for payment by the defender to the pursuer of the sum of Fifty one thousand and one pounds (£51,001) Sterling with interest (1) on Twenty four thousand seven hundred and thirty pounds and fifty pence (£24,730.50) thereof at the rate of eight per cent a year from 29th November 1992 until payment, (2) on Two thousand four hundred and four pounds (£2,404) thereof at the rate of eight per cent a year from 31st December 1993 until 31st December 1998, (3) on Two thousand two hundred and seventeen pounds (£2,217) thereof at the rate of eight per cent a year from 31st December 1994 until 31st December 1998, (4) on Three thousand four hundred and nineteen pounds (£3,419) thereof at the rate of eight per cent a year from 31st December 1995 until 31st December 1998, (5) on Three thousand four hundred and fourteen pounds (£3,414) thereof at the rate of eight per cent a year from 31st December 1996 until 31st December 1998, (6) on Four thousand seven hundred and ninety six pounds (£4,796) thereof at the rate of eight per cent a year from 31st December 1997 until 31st December 1998, (7) on Twenty one thousand nine hundred and thirty nine pounds (£21,939) thereof at the rate of eight per cent a year from the date of this interlocutor until payment, and (8) on Four thousand and three hundred and thirty one pounds and fifty pence (£4,331.50) thereof at the rate of eight per cent a year from the date of this interlocutor until payment; Reserves in the meantime all questions of expenses.

NOTE:

Introduction:

In this case the pursuer seeks decree of divorce on the ground of their non-cohabitation for five years or more. This was not a matter in dispute. The pursuer also seeks an order for the sale of the former matrimonial home ("Redwood") with division between the parties of the net free proceeds of sale, together with an award of a capital sum. In the course of the Proof the pursuer, without objection, amended Crave 2 by adding at the end of the Crave the words: "or in such other proportions as to the Court seems just." The defender in turn seeks an order under section 8(1)(a) of the Family Law (Scotland) Act 1985 ("the 1985 Act") for the transfer by the pursuer to him of her interest in Redwood, which is at present owned jointly by them, together with incidental orders relative to the execution and delivery of a conveyance. He also seeks an incidental order under section 14 of the 1985 Act ordaining the pursuer to make payment to him in respect of one half of various household outgoings. I was told that he was no longer insisting in Crave 2(b).

The issue between the parties was therefore the nature and extent of any financial provision which should be made by either party in favour of the other. The main asset of the parties was Redwood.

Three witnesses were led on behalf of the pursuer. These witnesses were the pursuer herself, Mr Thomas Hannah, Chartered Surveyor, and Mrs Helen Robertson, the pursuer's sister. Two witnesses were then led on behalf of the defender. The first was the defender. The second was his mother, Mrs Helen McLaughlin. Subject to some limited comments which I make below at certain points in relation to the pursuer, I found all of the witnesses to have been credible and reliable and to have been trying their best to tell the truth. I did however gain the impression in the course of the evidence of the pursuer that she still harboured a degree of resentment against the defender in relation to the circumstances of the break-up of the marriage in 1992 and that she had as a result felt to some extent justified in having been supported by him for as long as she had been after the separation. Any such feelings may be understandable but the question of the conduct of either party was not something which it was suggested could properly be taken into account in this case in terms of section 11(7) of the 1985 Act. It therefore played no part in my determination of the issues arising in this case.

Objections:

In the course of the evidence two objections to the relevancy of evidence were reserved and were renewed in submissions. I propose to deal with them at this stage.

Mr Morris first of all took objection in the course of evidence in chief by Mr Thomas Hannah, Chartered Surveyor, who was led in evidence on behalf of the pursuer. The objection was to a question regarding the value of Redwood as at 14th January 1998. Mr Morris' submission was that evidence relating to the value of the former matrimonial home at a date later than the relevant date was of no relevance. This was in the light of the approach taken by the Court in Wallis v Wallis 1993 SLT 1348; Tyrrell v Tyrrell 1990 SLT 406 and Muir v Muir 1989 SLT 20. He submitted that the Court required to focus on the valuation of the matrimonial property as at the date of the separation in this case, and not on any valuation some years later.

Mr Pieri for the pursuer submitted, under reference to Jacques v Jacques 1995 SLT 963, that this evidence was relevant to the question of whether the property transfer order sought by the defender was reasonable. This was so in view of the increase in value of Redwood since the date of separation. Jacques was a case in which it had been held that, as the former matrimonial home was to be sold, the difficulty which had arisen in Wallis was absent. This was because the Sheriff in Jacques had reached the view that the value of the former matrimonial home should be shared equally, with each party taking the benefit in the increase in value of his or her own share. The Inner House in Jacques concluded that, as the former matrimonial home was to be sold, an order for the sale of the home should be made under section 8(2) of the 1985 Act rather than leave the parties to raise further proceedings for division and sale. That was what the pursuer was seeking in the present case.

Mr Pieri also founded on section 8(2) of the 1985 Act which inter alia provides, in subsection (b), that the Court requires to make such order, if any, as is reasonable having regard to the resources of the parties.

The valuation of Redwood post-separation was therefore relevant as a check to see that any order made was a reasonable one and that it did not result in an injustice being done, such as if one party would otherwise end up with a windfall of a large amount. This was not to suggest that this was relevant to a calculation of the value of the house as at the relevant date. He was not suggesting that that exercise did not require to be done.

In my opinion, it is quite clear that the net value of the matrimonial property, including the matrimonial home, requires to be ascertained as at the relevant date. Mr Pieri did not suggest otherwise. However, in view of the requirement on the Court to make such order for financial provision as is inter alia reasonable having regard to the resources of the parties, in my opinion it cannot be said that evidence in relation to the value of the former matrimonial home post-separation is irrelevant to the question of what order, if any, should be made in terms of section 8. It is clear from the terms of section 8(2) that any such orders must be both justified by section 9 principles and reasonable having regard to the resources of the parties. In terms of section 27 of the 1985 Act "resources" is defined as meaning "present and foreseeable resources". It therefore seems to me that evidence in relation to any change in the value of relevant resources, including the former matrimonial home, cannot be said to be irrelevant to a determination of the question of what order for financial provision, if any, should be made in this case. I therefore repel the defender's first objection. I would also observe that the approach taken on behalf of the defender was somewhat inconsistent in that he was in effect on the one hand seeking to justify a departure from the principle of equal sharing on the basis of evidence of post-separation contributions and imbalances while on the other hand seeking to object to any evidence of post-separation increases in the value of matrimonial property. Such an approach did not seem to me to have any legal or logical basis.

The second objection was similar to the extent that it arose in relation to an attempt on behalf of the pursuer to lead evidence from Mr Hannah as to the value of Redwood as at June 2000, and that being at a figure of £210,000. This evidence was objected to not only on the same basis as objection was taken to the evidence of value as at January 1998 but also having regard to the pursuer's pleadings. I have already expressed my view in relation to the first ground of objection. I would therefore, for the same reasons, have repelled the objection on that ground. In relation to the pleadings, Mr Morris pointed out that the pursuer had herself averred at page 12, letter E, that she was not making any claim in respect of the augmentation of the property since December 1998. She also averred at page 6, letter B, "...the said property is currently valued at £200,000". These averments should he submitted be taken as meaning what they said, namely that the pursuer was offering to prove that that was the current value of the property. The defender was entitled to fair notice. It would not do to aver one value and then seek to prove a higher value. He told me that he had prepared on the basis of the averments on Record. In view of the lack of averment for the figure now proposed, he had not had an opportunity to consider and comment on the figure. This was therefore prejudicial to the defender. He did not elaborate on the respects in which it was prejudicial. This was the submission at the stage when objection was first taken in the course of the evidence of Mr Hannah.

Mr Pieri for the pursuer submitted that the evidence of a slightly higher value as at June 2000 was in effect a "modification" of his averment on Record. It was a question of degree and the evidence sought to be led was not so removed from what was on Record. He pointed out that the defender had averred at page 9, letter D, that the "current value" of Redwood was £190,000. It was open to the defender to lead evidence in support of this averment.

I allowed the evidence to which objection was taken to be given subject to all questions of relevancy and competency. In the event, no evidence was given by or on behalf of the defender to counter the evidence led under reservation, or in support of his own averment as to the "current" value of the house. Neither was there any motion, for example, to adjourn the case to enable Mr Morris to consult with a surveyor or for any such evidence to be led for the defender. In addition, it was not in the event suggested to Mr Hannah in cross-examination that Redwood had a value of other than £210,000 as at June 2000 or that the "current" value of Redwood, as at the date of the Proof, was £190,000.

When Mr Morris renewed his objection in submissions, he reiterated that the defender had been entitled to fair notice of the pursuer's case and he went on to submit that it was not fair notice to aver one value and then to seek to lead evidence of a higher value when the value of the matrimonial home "may be one of the main issues in the case". In the event, however, the question of what value Redwood had at June 2000 or later was not countered in evidence for the defender. The value of the house therefore was not in the event, despite the averments for the defender, "one of the main issues" in the evidence. I was also not satisfied that the defender had demonstrated that he had been prejudiced. If, for example, the defender had wished to consult a surveyor in relation to the evidence given by Mr Hannah, he could have sought an adjournment had that been required. No motion to such an effect was made. In the circumstances, it seemed to me that the evidence concerned amounted merely to a variation, modification or development of what was averred by the pursuer on Record. The pursuer's case remained the same, and no evident prejudice was occasioned to the defender. I therefore repel the objection for the defender in relation to this aspect of the evidence.

Orders for financial provision:

In this case, both parties were seeking orders for financial provision to which section 8 of the 1985 Act was applicable. I agreed with Mr Pieri that, having regard to the terms of section 8(2) of the Act, no order under section 8(1) could be made unless such an order was justified by the principles set out in section 9 of the Act.

Section 8(2) of the Act provides:

"...where an application has been made under subsection (1) above, the court shall make such order, if any, as is -

    • justified by the principles set out in section 9 of this Act; and

    • reasonable having regard to the resources of the parties."

It is apparent from the terms of section 8(2)(b) that any such order also requires to be reasonable having regard to the resources of the parties, as defined in section 27(1) of the Act".

Section 9 of the 1985 Act:

The only two principles set out in section 9 to which reference was made in the course of submissions were those contained in subsections (1)(a) and (b). The pursuer founded on that contained in section 9(1)(a). In the course of his submissions, Mr Morris for the defender made reference to section 9(1)(a) coupled with section 10(1) and (6), on the argument that other than equal shares was justified by special circumstances. Some reference was also made to section 9(1)(b) coupled with section 11(2). However, an argument under this head was not specifically developed and focussed. Having regard to the terms of section 11(2) of the 1985 Act, it would have been necessary to identify all alleged economic advantages and disadvantages and then to carry out the balancing exercise required in relation to any resulting imbalance identified. These exercises were not done in any detail at all. Perhaps this was in recognition of the fact, which I consider to be the case, that section 9(1)(a) is the more appropriate principle in the circumstances of this case. It was not clear to me that simply because the defender had paid in to the joint account more than the pursuer after the separation, in the same way as had been the case prior to the separation, this meant that the defender had suffered any specific economic disadvantage as such. For example, part (but which was in my view not quantifiable in any real sense) of what he was continuing to pay in as before towards the parties' total outgoings went towards the mortgage repayments in relation to the former matrimonial home. However, the former matrimonial home increased in value benefiting, in terms of the title, both him and the pursuer equally. Consequently, it did not seem to me that any actual economic advantages and disadvantages, and any resulting imbalance, had been, or perhaps even could be, identified. I have therefore proceeded on the basis that section 9(1)(a) was the more appropriate principle to apply in this case.

Turning then to section 9(1)(a) of the Act, this subsection provides as follows:

"9.-(1) The principles which the court shall apply in deciding what order for financial provision, if any, to make are that -

    • the net value of the matrimonial property should be shared fairly between the parties to the marriage"...

Consideration also requires to be given to section 10(1) and (6) of the Act. Section 10(1) provides as follows:

"(1) In applying the principle set out in section 9(1)(a) of this Act, the net value of the matrimonial property shall be taken to be shared fairly between the parties to the marriage when it is shared equally or in such other proportions as are justified by special circumstances."

Section 10(6) then provides: "...in subsection (1) above "special circumstances", without prejudice to the generality of the words, may include...". There then follows a list of five factors which might amount to "special circumstances". It is evident however that the circumstances listed are not exhaustive of what might amount to "special circumstances": Farrell v Farrell, 1990 SCLR 717. The position therefore is that the provisions of subsection (6) give guidance to the court but they do not fetter its discretion in applying the principle set out in section 9(1)(a): Jacques v Jacques 1997 SLT 459. As Lord Clyde said in that case at page 462: "The words "special circumstances" do not have any technical meaning but refer to any circumstances which are special to the case." Lord Jauncey of Tullichettle also observed, at page 461, that the matter was "essentially one of discretion, aimed at achieving a fair and practicable result in accordance with common sense." It is also clear from the opinions given in Jacques that the task of the court of first instance is to first identify whether the circumstances concerned amount to special circumstances and then to determine whether those special circumstances justify a division in proportions other than equal. In other words, as Lord Clyde put it at page 462, "an unequal division must be justified by those circumstances." I have therefore approached the matter on that basis.

What order, if any, is justified by the principle set out in section 9(1)(a) of the 1985 Act?

Parties were at one in submitting that the net value of the matrimonial property required to be the value of the property at the relevant date after deduction of debts outstanding at that date: section 10(2) and (3) of the 1985 Act, Wallis v Wallis 1993 SLT 1348. In the present case the relevant date was the date of the parties separation on 29th November 1992. The parties were however in dispute in relation to the relevance or otherwise of, first, the increase in the value of the former matrimonial home following the separation and, second, other post-separation contributions and factors.

At the outset of his submissions, Mr Pieri invited me to sustain the first, second, third and fourth pleas-in-law for the pursuer and to repel the pleas-in-law for the defender. His primary position was that the pursuer was seeking an order for the sale of Redwood, with the net free proceeds of sale being divided equally between the parties, together with a capital sum of £4,331.50, with interest thereon from the date of decree. In the alternative he submitted that if a property transfer order were to be granted in terms of the first crave for the defender, a capital sum totalling £29,061 was sought for the pursuer.

Mr Pieri submitted that the starting point was that the parties were co-proprietors of Redwood. This gave the pursuer a right of property in the house: Upper Crathes Fishings Ltd v Bailley's Executors 1991 SLT 747. The Court was obliged to value the matrimonial property as at the relevant date: Wallis v Wallis, supra. The 1985 Act did not however address the problem of an increase in the value of property since then. Leaving aside Redwood, there was little difference in the value of the matrimonial property held by each party at the relevant date. In so far as there was a slight imbalance in the way in which the rest of the matrimonial property had been distributed between the parties, he submitted that that could be put right by an award of £4,331.50 in favour of the pursuer. This was because, following the separation and leaving Redwood out of account, the defender had retained matrimonial property worth £48,225 in contrast to property worth £39,562 retained by the pursuer. There was therefore a differential of £8,663, one half of which resulted in the figure of £4,331.50 as being required to rectify the imbalance. That was therefore the sum he told me was being sought under reference to Crave 3, rather than the higher figures referred to in the Crave.

Mr Pieri submitted that the only realistic options were either to grant the order for sale sought by the pursuer or to make no order at all. He invited the Court to take the former course. It would not cause any injustice. It was justified by the principle of fair sharing set out in section 9(1)(a) of the 1985 Act. There was a presumption in favour of an equal sharing, and there were no circumstances to justify other than equal sharing in terms of section 10(1) of the 1985 Act. In this connection, factors of importance were he said that Redwood was purchased in joint names, that it had been purchased from the net free proceeds of sale of a previous house which had also been in joint names, that both parties had had input into the design of Redwood thereby contributing to its creation, that the marriage had been of long-standing, that both parties had worked during the course of the marriage up until the date of the separation and that, until December 1998, the expenses for Redwood had been met from the joint account to which both parties had contributed.

In so far as the pursuer had not made any contribution since December 1998, Mr Pieri submitted that the increase in the value of Redwood had not been great since then. The circumstances since then had not been particularly relevant. If it was thought that the pursuer had gained some advantage, this could be dealt with by looking at the capital sum of £4,331 additionally sought by the pursuer. Mr Pieri told me that if an order for sale were to made with an equal division of the sale proceeds but, as a compensating measure, with no further capital sum being awarded to the pursuer, he would not be able to argue that that would create an injustice. That would in effect leave the defender better off than the pursuer to the extent of £8,663. He suggested that that might be considered to be an appropriate consequence for what had happened after December 1998.

Mr Pieri submitted that in Jacques, supra the Inner House had endorsed the "broad and practical" approach taken by the sheriff. In that case the fact that there had been an agreement to take the house in joint names had been regarded as being a factor of importance in favour of the sheriff's view that there were no circumstances to justify departure from the principle of equal sharing. That ought also to be the position in the present case. In the House of Lords (reported 1997 SLT 459) the argument had he said shifted slightly. However, they did not disapprove of the reasoning by the Inner House. By contrast, the granting of the property transfer order sought by the defender would result in an injustice to the pursuer. This was because Redwood had increased in value significantly since the date of separation. The sum due in terms of the mortgage had also decreased as a result of their respective contributions. The defender would therefore have gained an advantage as a result of, first, the pursuer's contributions towards the outgoings and, second, as a result of the pursuer's capital investment in Redwood which still remained in the house. He would receive a windfall. The increase in the value of Redwood should benefit them both. The Court should therefore not make a property transfer order.

In so far as the defender was maintaining that a property transfer order should be made in his favour on account of the imbalance in the respective contributions of the parties, Mr Pieri submitted that this argument was flawed. The fact that differing contributions had been made by the parties since the separation was irrelevant. This was because the whole scheme of the 1985 Act was to value and share the matrimonial property as at the relevant date.

It seemed to me that in making this submission Mr Pieri was attempting to have things both ways. It was not clear to me why, if he was correct in suggesting that it was relevant to have regard (a) to the fact that the house had increased in value since separation and (b) to various other post-separation factors upon which he relied, the question of the extent of the post-separation contributions made by the defender was irrelevant. It seemed to me that his argument also ignored the fact that, in terms of section 14(2)(j) of the 1985 Act, the Court is empowered to backdate any award of interest on any amount awarded. Indeed, I was invited by Mr Pieri to award interest on the sum of £24,730 from the date of the separation in view of the increase in the value of the house since then for which the pursuer would otherwise be receiving no compensation. On behalf of the defender, Mr Morris accepted that if a property transfer order was to be granted with a capital sum being awarded to the pursuer in respect of her half share of the net value of Redwood as at the relevant date, interest should be payable on such a capital sum from the date of the separation until payment. In the circumstances, I was not satisfied that Mr Pieri was correct in his submission regarding the differing contributions post-separation.

Mr Pieri's alternative argument as regards the property transfer order sought by the defender was to the effect that, if his primary submission was wrong, it was in any event inappropriate in proceedings such as these to work out contributions in detail. A broad axe approach was generally taken. Again, the sum due under the mortgage had decreased since the separation due to contributions by both parties. The defender would he said also receive a windfall in excess of the support given by him to the pursuer after the separation. He also suggested that the defender's approach ignored the contributions made by the pursuer in relation to the house in non-financial terms both before and after the separation. He submitted that it was relevant to have regard to post-separation factors such as that the pursuer had remained in the house and had arranged for routine maintenance. It seemed to me that the mere fact that the pursuer had remained in the house was hardly a "contribution". She was, rather, obtaining the benefit of living there for a lengthy period. Neither was it clear to me on the evidence that she had made any other significant contribution in non-financial terms after the separation which might have outweighed the advantage she had had of continuing to live there. In this connection, Mr Pieri suggested that the pursuer had assisted throughout the marriage in doing normal housekeeping tasks and that after she had gone part-time in about January 1989 it would be reasonable to infer that she would have been able to devote even more of her time to looking after the house. According to my recollection, there was no evidence about the extent to which the pursuer carried out household tasks during the marriage, beyond her agreement in examination-in-chief to the proposition put to her by Mr Pieri to the effect that after the separation she had tidied and cleaned the house. There was no evidence at all about what she did with her time after she went part-time, and I was not satisfied that there was a sufficient basis for drawing the inference suggested by Mr Pieri.

That apart, Mr Pieri submitted that the pursuer had returned to full-time employment as soon as she had been able to. She had not acted unreasonably in this respect. Had the joint account arrangement not continued, the pursuer would not have been able to live without support (or additional income) in Redwood or elsewhere until the end of 1998. The defender had accepted that the pursuer's expenditure during this period had not been unreasonable. The extent to which he had supported her was Mr Pieri submitted well within the band of what a court might have been expected to have awarded had the defender refused to support the pursuer. His submission therefore was that the fact that the defender had supported the pursuer until December 1998 was irrelevant. He suggested that the present case was not dissimilar to McKenzie v McKenzie 1991 SLT 461. In that case the wife had continued to occupy the former matrimonial home after the separation. The house was owned in joint names. The husband had continued to pay the mortgage and insurance premiums. The Court there had taken the view that these payments were more properly to be seen as aspects of the interim regulation of aliment, as opposed to being something which should be reflected in the determination of the capital division between the parties. He submitted that the implication of this decision was that the regulation of interim aliment, which he suggested was the way in which matters should be viewed in the present case also, was not something so special as to amount to a special circumstance.

Mr Pieri's alternative position was that if a property transfer order were to be granted in favour of the defender, he would be seeking a capital sum totalling £29,061 on behalf of the pursuer. This would represent, first, the sum of £24,730, being one half of the net value of Redwood as at the relevant date and, second, the sum of £4,331. In that event, he would be seeking interest at the judicial rate on the figure of £24,730 from the date of separation until payment in order to compensate the pursuer for her having lost the benefit of the increase in the value of Redwood over that period.

Mr Morris invited the Court to sustain the second and fourth pleas-in-law for the defender, to repel the second and fourth pleas-in-law for the pursuer, to grant the property transfer order sought in the first crave for the defender and to award the pursuer a capital sum under reference to her third crave to the extent of a total of £50,100.50. He was at one with Mr Pieri in asking that the Court make a definitive determination in relation to the former matrimonial home, rather than making no order.

Mr Morris submitted to me that post-separation circumstances, such as the extent or otherwise of contributions to outgoings in relation to the former matrimonial home or other assets, could be taken into account: Muir v Muir 1989 SLT (Sh Ct) 20, Farrell v Farrell supra, Boyes v Boyes 1996 Family Law Bulletin 20-6, cf Tyrell v Tyrell 1990 SLT 406. Farrell was he submitted also authority for the proposition that "special circumstances" were not restricted to those listed in section 10(6) of the 1985 Act and that this could include a situation where disproportionate contributions had been made. The duration of the contributions made in the present case was also relevant, coupled with the pursuer's failure to pay anything at all since December 1998. She had also had exclusive use of the house between 1992 and 1998, whilst the defender had lived in rented accommodation. An order representing an equal division of the current value of the former matrimonial home in this case would not be fair.

Mr Morris submitted that the pursuer's argument had ignored the fact that the pursuer had had exclusive occupation of Redwood for six years whilst the defender had lived in rented accommodation, that she had been subsidised by the defender to the extent of £21,239 over that same period, that she had contributed nothing at all since December 1998 and therefore that the defender had paid all the outgoings for Redwood since then. He also submitted that Jacques was not on all fours with the present case. It was not evident from the reports of the case whether one party in that case had paid more towards the outgoings. The inference from what was said by the Court in Jacques was he said that the contributions were similar. There was also no reference in that case to post-separation contributions. He therefore invited me not to place reliance on the approach taken in Jacques. In relation to McKenzie, in which the Lord Ordinary had held that the increase in the value of the former matrimonial home after the date of the separation belonged to the parties equally, Mr Morris pointed out that this case had pre-dated the decision in Wallis. The circumstances in that case also included the fact that the wife had continued to live in the house after the separation with the child of the marriage. It appeared that the Court were there equating the payments made by the husband with interim aliment. There also had been no change in circumstances since the separation, whereas in the present case the pursuer had eventually moved out in December 1998 to be supported by someone else, and the defender had met all the liabilities in relation to the jointly owned house from then on. The whole circumstances in the present case in the entire period from 1992 to date amounted to "special circumstances" justifying other than equal sharing.

I do not regard the present case as being on all fours with the position in Jacques. It is true to say that there are certain similarities, such as that the matrimonial home had been taken in joint names. In that case, that was regarded as being a factor of importance by the Sheriff at first instance. This approach was not disapproved either by the Inner House or by the House of Lords. It seems to me that this is a factor of importance in the present case also in favour of what was described by Lord Clyde in Jacques as being "a presumption of equality in the absence of any special circumstances justifying otherwise". That apart though, it seems to me that there is a limited similarity between the two cases. For example, there is no suggestion in the Reports in Jacques that there was any material differential between the contributions made by both parties and over such a lengthy period since the separation as has occurred in the present case.

So far as McKenzie is concerned, I do not consider that that case is on all fours with the present one either. In that case the Lord Ordinary reached the view that fairness would be achieved by treating the parties' assets as being divided equally between them as at the date of separation. The parties had separated less than three years before the divorce proof. The wife had continued to live in the former matrimonial home with a child of the marriage who was between school and university. The Lord Ordinary reached the view in the light of the evidence in that case that the increase in the value of the house over the period of just under three years was something which should belong to the parties equally, and that the wife's enjoyment of the house in the period since the separation, together with the husband's payments in respect of the house over that period, were "more properly to be seen as aspects of the interim regulation of aliment which will be necessary in cases such as this". That was a case in which the Lord Ordinary went on to award the wife a periodical allowance of £300 per month without limit of time on the basis that he was satisfied that she would otherwise be likely to suffer serious financial hardship. In my opinion, the circumstances in the present case are quite different. I am not satisfied that I can simply assume that if the defender had not continued in effect to support the pursuer for approximately six years the defender would have been ordered by the court to support the pursuer to the extent suggested for such a protracted period. The explanation she gave for not returning to full-time employment before April 1997 was that such employment was not readily available in the department in which she was working. She gave evidence to the effect that she had not looked for alternative employment outside the civil service because she had enjoyed her work there, that she had not wanted to give up the security of her employment in the civil service and that she had not wanted to jeopardise her pension position. I accepted that these factors had formed part of the pursuer's thinking. She did however accept in cross-examination that she had done just these things in December 1998 by leaving the country to live with Mr Kaylor. I was not satisfied that, had she put forward such factors to justify seeking support from the defender in the form of an award of interim aliment from the court during that period, this would necessarily have justified a continuing award of interim aliment for what was in the event many years. In all the circumstances, I am therefore not satisfied that it would be appropriate to view what happened in this case as simply being "more properly to be seen as aspects of the interim regulation of aliment".

In any event, there is also the feature in the present case that even after the pursuer obtained full-time employment again in April 1997 she continued to live at Redwood until December the following year when she then gave up her job and left Redwood, leaving the defender to meet all outgoings for the jointly owned house thereafter. This was even to the extent of failing to comply with the order of the court in January 2000 to make modest monthly payments in respect of insurance payments for the house. In cross-examination, the pursuer gave evidence to the effect that she had not paid the sums due in terms of the Court order because she felt that she had in effect paid the sums in another form. This was because rebates totalling about £195 had been paid in to the former joint account in 1999 after her name had been removed from it and these rebates had not then been forwarded to her. She agreed with a proposition put to her in re-examination to the effect that she had thought that these rebates should be treated as being payments in advance for the insurance payments. There was no evidence that she had ever asked the defender to forward these sums to her before the issue was raised about the insurance payments. I was not particularly impressed by the pursuer's attempt to justify not having complied with the Court order. I formed the view that she had, faced with the request that she contribute to the house insurance, been less than generous in refusing to make the payments ordered by the court and in seeking to treat the tax rebates as payments in advance bearing in mind the very significant extent to which the defender had in effect subsidised her through the joint account over many years when she had also had exclusive use of the former matrimonial home.

I was also reminded of the averments on behalf of the pursuer at page 12, letter D of the Record to the effect that the pursuer was only seeking the value of her one half share of the former matrimonial home as at December 1998, with interest. Leaving aside the fact that she should only have been seeking a one half share as at the date of separation, Mr Morris also pointed to the pursuer's further averments at page 12, letter E as follows: "In respect of the augmentation of the capital value of the property since December 1998 the pursuer makes no claim whatsoever." He submitted that this was an implicit acknowledgement of the basis upon which the Court proceeded in the authorities to which he referred me. This was he said to the effect that a party who had met all of the liabilities in relation to a joint asset should be entitled to the full value of the asset in so far as attributable to the period during which the contributions were made. A particular example of this was Farrell, supra. Mr Morris also pointed out that the pursuer had in her own averments at page 8, letter B proceeded on the basis of an assertion to the effect that between 1992 and 1998 the parties had contributed equally to the costs in relation to the property. However, it was clear from the evidence that this was not correct and that the defender had contributed far more to these costs than had the pursuer. He accepted that if the pursuer had contributed equally it was difficult to see how it would have been possible to object to her having an equal share in the proceeds of sale. In such a situation, there would have been no special circumstances justifying other than an equal division. However, having failed to make an equal contribution in the circumstances described, including the failure to make any contribution at all since December 1998, how could the pursuer justify the same conclusion? The pursuer should not be entitled to benefit as a result of the defender's contributions totalling £21,239.26 over that period by asking the Court now to disregard this. He also submitted that the pursuer should have done more to secure full-time employment before she did decide to do so. She had in effect taken advantage of the situation for six years whereby she was being supported by the defender.

Mr Morris' principal argument was to the effect that the transfer of property order sought by the defender, coupled with an award of a capital sum to the pursuer, was justified by special circumstances. He submitted that this would achieve a fair and equitable result in the circumstances. To achieve such a result, Mr Morris suggested that the pursuer could be found entitled to one half of the net value of Redwood as at the relevant date (which he rounded up at a figure of £24,730.50 as representing one half of £49,461) together with the sum of £21,939 being a rounded up figure representing what he suggested had been her effective contribution towards the cost of Redwood between the beginning of 1993 and December 1998 (see finding-in fact 22). Mr Morris agreed that, should this approach be taken, interest should be payable to the pursuer at the rate craved on her share of the net value of Redwood from the date of separation. According to my calculations, to date this would add about £16,115.

In addition, Mr Morris submitted that the Court might take the view that interest should also be due year by year on what might be regarded as having been in effect annual contributions from the pursuer for the years between 1993 and 1998 at the judicial rate from the end of each year until the end of December 1998 when she had stopped making contributions. This would be to reflect the period of time since these effective contributions had been made towards the costs concerned. No interest should be due after this in view of the pursuer's own averments on this matter. For the same reason, no interest should be due on the final effective contribution of about £5,689 in the year ending 31st December 1998. According to my calculations, to date interest on that basis would add about a further £3,420.

As regards the rest of the matrimonial property, and on the basis that the order for sale sought by the pursuer was not granted, Mr Morris suggested that there should be a balancing payment of £3,431 found to be due by the defender to the pursuer. That figure, when added to the sums of £24,730.50 and £21,939, would bring out a total of £50,100.50 as being the total capital sum payable under reference to the pursuer's third crave. His main argument in relation to the rest of the matrimonial property concerned the difference in values between both parties' pensions. He suggested that the pursuer should be found entitled to only 40% of the difference to reflect "the early capitalisation of the pension fund interests". In that connection he referred to Muir v Muir 1989 SLT 20. However, that was a case in which the Sheriff had heard evidence about the pension concerned, including actuarial evidence. In the present case, there was no evidence at all about the nature and terms of the pensions. I therefore did not consider that I had any basis in the evidence to entitle me to proceed in the manner indicated by Mr Morris. I therefore see no basis for proceeding on other than that of equal sharing as regards the rest of the net value of the matrimonial property.

Mr Morris' alternative position, in the event of a property transfer order not being made, was that the Court should grant an order for sale of the house with the sum of £21,239.26 being payable in the first instance to the defender. This would be in order in effect to repay him the amount by which he had supported the pursuer following the separation, with the balance then remaining being divided equally between the parties. In that event, the defender would be seeking an order in terms of his Crave 2(a) from 10th August 1999, being the date of commencement of the present proceedings, in respect of a one-half share of the outgoings in relation to Redwood. This was on the view that if the pursuer was to be getting one half of the current value of the house, she should in fairness be liable to pay her share of the outgoings until the date of sale of the house.

One area of contention concerned the issue of the pursuer's return to full-time employment. Mr Morris on behalf of the defender suggested that if the pursuer had been working full-time from the date of the separation until the end of December 1998 she would have had sufficient income to meet both her own expenditure and reasonable alternative housing costs. It seemed to me that there was a problem with this submission. This was that, although there was evidence of what the pursuer had earned after she had returned to work on a full-time basis in April 1997, there was no evidence of what such full-time earnings would have been in relation to the period between the date of separation and April 1997. The defender himself gave evidence to the effect that he did not know what her full-time earnings would have been before April 1997. As I have already indicated, I was not satisfied that, had the pursuer in the period of her separation from the defender whilst still in part-time employment sought continued support from the defender in the form of an award of interim aliment from the court, she would necessarily have been successful in obtaining a continuing award of interim aliment for what was in the event many years. I therefore had some sympathy with the view expressed by the defender in the course of his evidence to the effect that, although he could see why someone would not wish to lose the security of their employment, he felt that the pursuer could have made some more efforts to have obtained full-time employment in the period between 1993 and 1997.

Having heard the submissions on behalf of the defender, Mr Pieri responded by telling me that he was conscious of the fact that the pursuer's pleadings did state that she was making no claim in respect of the increase in the value of the house after December 1998. He therefore conceded that it might be that a line should be drawn at December 1998 and that a conclusion might be reached that a division of the net free proceeds of sale on other than a 50/50 basis would be appropriate. Against this background he then suggested that a division of the sale proceeds to the extent of 45% to the pursuer and 55% to the defender could "do justice" to the situation. However, he did not go on to further explain or demonstrate that. Mr Morris submitted that because it was not known just how long it would take to sell the house, or at what price, it would not be possible for the Court to know that 55% of the net free proceeds of sale for the defender would be fair.

The pursuer's position on Record was that the parties had contributed equally to the matrimonial home between 1992 and 1998. However, that was patently not so. There had in fact been a disparity between the overall contributions of the parties to the extent of £21,239.26. Although Mr Pieri had at the outset of his submissions suggested that there were no circumstances to justify a departure from the principle of equal sharing, it seemed to me that in later suggesting either that there could be a "compensating measure" in the form of making no further award of a capital sum to the pursuer or that there could be a division of sale proceeds on the basis of 55% to the defender and 45% to the pursuer, he was implicitly accepting that there were such circumstances.

In my opinion, Mr Morris was well-founded in his submission to the effect that there were circumstances in the present case amounting to "special circumstances" and that these justified a departure from the general course of an equal division. In the ordinary course an equal division will be fair, but in the present case I was satisfied that that would not be fair. In the light of the evidence, I took the view that an unequal division was justified by a number of special circumstances in this case. Those special circumstances included the following: (1) that significantly greater contributions were made by the defender to the parties' outgoings following the separation in effect subsidising the pursuer to the extent of £21,239.26, and over a protracted period; (2) that the pursuer had for six years had exclusive use of the former matrimonial home whilst the defender was living in rented accommodation and was making those greater contributions; (3) that even although the house remained jointly owned after she left in December 1998 the pursuer made no contribution at all towards the house thereafter, leaving the defender to meet all expenditure in relation to the house, and (4) that the pursuer had herself taken the position on Record (to justify asking the court not to order her to pay anything towards the house after December 1998) that she was not making any claim in respect of the increase in the value of the house after December 1998. In reaching the view that I have, I have taken into account the factors upon which Mr Pieri relied. However, I remain of the view that, looking at the overall picture, the factors to which I have referred justify an unequal division.

On the question of what orders for financial provision would be appropriate, I took the view that a fair sharing would be achieved by granting the transfer of property order sought by the defender, coupled with an award of a capital sum to the pursuer totalling £51,001 (which included the sum of £4,331.50 referred to below) with interest thereon. I did not agree with the suggestion to the effect that this would result in a windfall for the defender. To the contrary, it seemed to me that in (1) accepting that interest should be payable in relation to the pursuer's one half share of the value of the former matrimonial home as at the date of separation in November 1992 and (2) suggesting that she should also have returned to her the sum of £21,939 as representing her effective contribution up until December 1998, with interest at the rate craved on £16,250 thereof, the defender would, even leaving out of account the sum of £4,331.50, in effect be paying over to the pursuer a capital sum and interest thereon not very far short of the value of the pursuer's one half share in the house. Mr Pieri had also himself conceded that it might be that a line should be drawn at December 1998.

In relation to the rest of the matrimonial property, as already indicated, I did not consider that I could reduce the balancing payment in the manner suggested by Mr Morris. That being so, the additional sum of £4,331.50 fell to be awarded, with interest from the date of decree. He did not suggest that there should in the event of a property transfer order being granted be no further "balancing payment" to the pursuer in relation to the remaining matrimonial property.

No suggestion was made that the orders sought by the defender would not be reasonable having regard to the resources of the parties, and I was in the circumstances satisfied that they would be reasonable as required by section 8(2)(b) of the 1985 Act.

Both parties invited me to reserve all questions of expenses.