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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Doherty Or Cunningham Or Vosilius (AP) v Vosilius & Ors [2000] ScotCS 100 (6 April 2000) URL: http://www.bailii.org/scot/cases/ScotCS/2000/100.html Cite as: [2000] ScotCS 100, 2000 SCLR 679

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[1] This is an action of declarator of marriage by cohabitation with habit and repute. The pursuer alleges that she and the late Patrick Vosilius ("the deceased") cohabited from 6 November 1976 until the date of his death on 7 April 1995 and that by reason of that cohabitation and the habit and repute arising therefrom they were lawfully married.

[2] The first defender is the elder son of the deceased by his marriage to Agnes Harris, from whom he was divorced on 5 November 1976. He is also the executor of the deceased's estate. The second, third and fourth defenders are respectively the younger son and the two daughters of the deceased by that marriage. The fifth defenders were the Railway Pension Trustee Company Limited, who were the trustees of a pension scheme in which the deceased had certain rights, but they were subsequently released from the process. The sixth defender is the Lord Advocate, who is called as representing the Secretary of State for Social Security and in the public interest. Defences were lodged on behalf of the third and fourth defenders. On 21 January 2000 the first defender was allowed to lodge defences late. His solicitors withdrew from acting for him a few days before the commencement of the diet of proof. When the case called before me, I inquired of the first defender, who was present by virtue of a citation as a witness for the third and fourth defenders, whether he wished to take part in the proof as a party, but he indicated that he did not. In the result, therefore, the only parties represented at the proof which I heard were the pursuer and the third and fourth defenders.

[3] In addition to the conclusion for declarator of marriage, the pursuer concludes for interdict of the first defender as executor of the deceased from distributing his estate without regard to her interest therein as his widow.

[4] It is convenient, before examining the evidence led and the submissions made, to identify at least in outline what the law requires for the constitution of a marriage by cohabitation with habit and repute. I am content to follow the example of Lord Nimmo Smith in the recent case of Ackerman v Blackburn (18 January 2000, unreported), and adopt as an accurate summary of the law the following passage from Clive, Husband and Wife, 4^th Edn., § 05.025:

[5] In presenting her submissions for the pursuer, Mrs Scott followed the pattern set by Dr Clive in his treatment of the individual requirements of the law, and it is therefore convenient to identify those individual requirements in order to see how far they are in dispute in the present case. The requirements are:

In addition, if these requirements are satisfied, two further matters require to be considered, namely (i) whether the presumption of tacit consent which in that event arises has been rebutted, and (ii) at what date the marriage should be declared to have taken place.

[6] No issue arises in the present case as to requirement (c). Although there was evidence that the deceased spent a period of a year or a little more working in England, probably in the late 1980s, there was no suggestion that any cohabitation took place elsewhere than in Scotland. The only cohabitation alleged by the pursuer was at her house at 48 Willow Crescent, Coatbridge.

[7] Nor does any issue arise as to requirement (g). Both the pursuer and the deceased were previously married. The pursuer was married to Daniel Cunningham, and was divorced from him on 7 June 1973. The deceased was married to Agnes Harris or Vosilius, and was divorced from her on 5 November 1976. Although there was evidence that the pursuer and the deceased were cohabiting before he was free to marry, the period of cohabitation founded on in the first conclusion is the period commencing immediately after the deceased was divorced and ending on his death.

[8] In these circumstances, the issues which require to be addressed in the present case are, in my view:

[9] In her pleadings the pursuer avers that she commenced a relationship with the deceased in about 1975; that he moved to live with her in her house; that he purchased a ring for her; that shortly thereafter they started to cohabit, sleeping together and enjoying sexual relations; that after the deceased's divorce they continued their cohabitation as husband and wife; that they regarded each other as husband and wife; and that they resided together continuously as such until the deceased died. The defences for the first, third and fourth defenders contain the following averments:

The defenders' averments are silent as to the period from 1976 to 1991.

[10] In her evidence the pursuer was initially unable to remember the date when she first met the deceased. She said that he always regarded 17 June as the anniversary of their first meeting, although she did not herself remember the date. By cross-reference to the age of her youngest son, she identified the year as probably 1971. That is earlier than the date mentioned in her pleadings. There was produced a photograph of the pursuer and the deceased together in company with a number of others (No. 24/1 of process) which the pursuer related to an occasion on 22 March 1975. By then, she said, she had known the deceased for "coming up for five years". When she met the deceased, the pursuer was living at 5 Arnott Drive, Whifflet. According to her, he did not live with her there. She moved to a larger house at 48 Willow Crescent, Coatbridge, and he moved in with her there. She thought that was in 1971. In that house there were three bedrooms, of which two were occupied by the pursuer's four sons and the third was shared by the pursuer and the deceased. Thereafter they lived together until he died. The deceased in the late 1980s worked in London for over a year, during which period he came home every second or third weekend, and she on one occasion joined him in London for a holiday. Before his death they had been planning what they would do on his imminent retirement.

[11] Further, the pursuer's evidence was that she and the deceased regarded each other as husband and wife. In 1976 they exchanged rings, which they each wore on the left ring finger. Various cards which they gave to each other (Nos. 23/3-10 of process) were relied upon as illustrating that they regarded each other as husband and wife. There was some evidence that the signature on one of the cards bearing to have been sent by the deceased was not his, but I do not regard that as subverting the fact that in general the cards bear out that the pursuer and the deceased addressed each other as husband and wife. (I shall return later to the significance of the evidence about an "engagement" between the pursuer and the deceased.)

[12] Alan Cunningham, the pursuer's second son (whose evidence was taken on commission), thought that it was when he was about 10 (i.e. in about 1972), while they were still living at 5 Arnott Drive, that the deceased joined the household, and that he moved with them to 48 Willow Crescent in the following year. He said that he was brought up by the pursuer and the deceased. He regarded the deceased as his father. His mother regarded the deceased as her husband. His school friends thought of the deceased as his father, and referred to him as "Mr Cunningham". He explained that at that time having parents who were separated was embarrassing, and not something that would be explained in detail to friends. The pursuer continued to call herself "Mrs Cunningham". At Alan's wedding the deceased occupied his rightful place as the bridegroom's father (and the same happened at the wedding of his elder brother, Brian, in 1984). Alan lived in family with the pursuer and the deceased until about 1990 or 1991. He described the pursuer and the deceased as life-long partners. "I mean they weren't married but they were probably together a lot longer than many people have been married."

[13] Brian Cunningham, the pursuer's eldest son, now aged 38, recalled that he was still at primary school when the deceased joined the household. He too said that the deceased brought him and his brothers up. He referred to the deceased as his step-father, and called him "Dad". His friends, like Alan's, called the deceased "Mr Cunningham". The pursuer regarded the deceased as her husband, and he regarded her as his wife. They were living together as husband and wife. That situation never changed.

[14] Margaret Lochrane, one of the pursuer's neighbours in Willow Crescent, said that the pursuer had moved into Willow Crescent twenty nine years ago, a couple of months after she did. The deceased and the pursuer's children came with her. The pursuer introduced the deceased to her (in 1971) as "my husband, Pat". She and the pursuer became friends, and the two couples visited each other's houses, and went out socially together. The pursuer's children and Mrs Lochrane's children played and went to school together. Mrs Lochrane knew that the pursuer and the deceased shared a bedroom with a double bed, and that the other two bedrooms were occupied by the pursuer's sons. She said that the pursuer's children called the deceased "Dad" or "the old man".

[15] The third defender, who was born in December 1967, said that her parents separated "in the '70s" when she was "six or eight". When asked if she knew the pursuer, she said "Not really", she knew who she was. She knew her as Sadie Cunningham. She stated that her father was not married to the pursuer, and volunteered that he was "just living as a lodger there". She asserted that the pursuer and the deceased were not cohabiting between 1976 and 1995. She accepted that the defender was living at 48 Willow Crescent at the date of his death, and had done so "on and off since the '70s". She said that for a time he was "coming back and forward and staying with my mum". She said that she kept in touch with her father and visited him quite often at 48 Willow Crescent, but was inside the house only "maybe a couple of times". She said that she was not made welcome by the pursuer. She was last there in about 1991, apart from a visit when her son was born in 1994. She said that she knew what the living arrangements were, and that the deceased lived in a room of his own. He did not share it with anyone. It contained a single bed and a television, and sometimes a cooker from the caravan. She saw this herself. The deceased was a lodger throughout the whole period for which he stayed at Willow Crescent. Having said that, however, she conceded that "at one time they were partners", but said that "that all went downhill when my brother [the first defender] stayed with them", which was for a couple of months in the 1970s. For a time in the 1970s and 1980s, the deceased stayed in a caravanette by himself. For a period in 1988 the deceased stayed with the first defender in Salsburgh. He then went to work in London. After his return he was paying the pursuer £80 per week for his lodgings. He had his name down with the local authority for the tenancy of a house of his own. In cross examination, the third defender accepted that the pursuer and the deceased shared a bedroom in the 1970s, and said that the defender had latterly occupied the same room as a lodger. She reiterated, however, that during the earlier part of that period he came back to her mother's house at times and continued to share her bed. He finally moved away in about 1978. She knew about the £80 per week lodging money because her father told her. Before he took ill, her father asked her if he could come and stay with her. That was in about February 1994.

[16] The fourth defender, who was born in August 1969, could not remember her parents' separation. She did not know when her father went to live at 48 Willow Crescent; she thought it must have been when she was a baby or very young. She believed (but did not know) that there had been a relationship between the pursuer and the deceased in the 1970s. She said that she found out about it subsequently, and also found out that it "went sour". The deceased was living at 48 Willow Crescent at the time of his death, and as far back as she could remember. There was a period when he was not there, when he was working in London, for about a couple of years around 1989. She thought he did not come back from London at weekends. He never came to see her throughout the period he was in London, and she was sure that he would have done if he had been back in Scotland at weekends. She accepted that the pursuer and the deceased had a relationship, were living together, at one time, but said that she thought the relationship came to an end at about the time he went to work in London. There was, she accepted, no question of the deceased being a lodger before he went to London. Although she never saw his living arrangements after 1991, she said that at the date of his death the deceased was living in the pursuer's house as a lodger. She said that her father had told her, a couple of years before his death, that "she [the pursuer] is taking £80 a week dig money". He was, she said, quite upset about it. They were not living together as man and wife at the date of his death.

[17] The defenders' contention that the deceased was latterly living in the pursuer's house as a lodger was rejected by the pursuer, both of her sons, and Mrs Lochrane. The pursuer said, "How could I charge him rent? We put our money together". Later she said, "Lodgers don't do all the things Pat and I did together". Alan said that it was a lie to say that the deceased had his own bedroom, with his own cooker and television, and that he and the pursuer lived separate lives. Brian dismissed the suggestion as "nonsense", adding "I can assure you that Pat was no lodger". When it was put to Mrs Lochrane that the deceased was a lodger, her reply was "I don't think so", said in a tone that conveyed to me certainty rather than hesitancy.

[18] Two pieces of documentary evidence were also invoked as casting light on the nature of the relationship between the pursuer and the deceased. One was that the deceased, who was latterly employed by British Rail, had obtained for the pursuer a staff travel pass (No. 23/16 of process), current at the date of his death, on which she was described as "Sarah Vosilius, Spouse". The other was that in the hospital records (No. 24/3 of process), relative to the period that the deceased spent in hospital before his death, the pursuer's name was entered as the deceased's next-of-kin, with the annotation "common law wife". The nursing records for 29 March 1995 contain the following entry:

[19] On the questions whether the pursuer and the deceased cohabited, and whether they did so as husband and wife, I find the evidence given by the pursuer, her sons and Mrs Lochrane coherent and credible. It supports the conclusion that the pursuer and the defender began to cohabit in the early 1970s, before they were free to marry, and continued cohabiting until his death. It supports, further, the conclusion that the cohabitation was as husband and wife. It seems to me that apart from the pursuer's own direct evidence about the way in which they regarded each other (for which the birthday cards produced provided some objective support), the evidence of the role which the deceased played in the upbringing of the pursuer's sons, acting in all practical senses as their father, is eloquent of the fact that the relationship between the pursuer and the deceased was of the nature of husband and wife. I do not consider that the fact, which I find established, that the deceased worked in London for a period of over a year in the late 1980s, is any obstacle to a finding of cohabitation as man and wife over the period contended for. There must be many marriages in which such separations for reasons of employment take place. Moreover, I do not find that I am prevented from reaching those conclusions by the evidence of the third and fourth defenders. I was not favourably impressed by the evidence of the third defender. Her initial assertion, thrust forward before any question on the subject was asked, that the deceased was a lodger from the outset, not only went much further than her averments on record (which relate only to the period from 1991), but also involved making an assertion about a period when she was a small child and could have had no direct knowledge of the nature of the relationship. The unfavourable impression thus created was not eliminated by her later concession that there had initially been cohabitation. Moreover, she introduced into her evidence a number of points (about the relationship going downhill after a period when the first defender stayed with the pursuer and the deceased; about the deceased staying for a time with the first defender; about his staying for a time in a caravanette; and about his applying for a house of his own) which were not pled on record, some of which were not (so far as it would have been appropriate to do so) put to the pursuer, and others of which were not independently supported as they might have been, if they had been true (e.g. by Local Authority records relating to the alleged housing application, or by the evidence of the first defender in relation to his alleged stay with the pursuer and the deceased and the deceased's alleged stay with him). Moreover, her description of the accommodation allegedly occupied by the deceased eventually appeared to be an extrapolation from what she said she saw on one occasion in about 1991. The fourth defender was a somewhat more sophisticated witness. She conceded cohabitation until the late 1980s or early 1990s. In the end she did not offer any basis for her assertion that the deceased was a lodger apart from what she said he told her about paying £80 per week. She did not claim to know anything from her own observation about the living arrangements. It may be that the deceased did at some stage grumble about contributing £80 a week to the household, but I do not accept that he said he was, or that he was in fact, a lodger. I place no real weight in this context on the travel pass, but I do find support for my conclusion that the cohabitation was as husband and wife from the way in which the pursuer was described in the hospital records, and the passage in the nursing notes indicating, as I understand it, that the deceased had expressed a wish that the pursuer to be treated by the hospital as his next-of-kin.

[20] I find, on the basis of the evidence that I have outlined, that the pursuer and the deceased cohabited as husband and wife from a date prior to that on which the deceased became free to re-marry (probably from about 1971) until the date of his death. The relevant part of that period, namely from 6 November 1976 onwards, a total of eighteen and a half years, is in my opinion of more than sufficient duration to satisfy requirement (d) mentioned in paragraph [5] above. Indeed, even if I had accepted that latterly the deceased was living in the pursuer's house as a lodger, that would not have stood in the way of that requirement being satisfied. Even if there had been a change of status on the deceased's part from cohabitant to lodger as early as 1991, there would still have been a period of cohabitation as husband and wife of about fifteen years duration. That would in my view have been more than sufficient to satisfy requirement (d). If by 1991 there had co-existed along with that period of cohabitation circumstances satisfying the other requirements for marriage by cohabitation with habit and repute, the pursuer would, in my opinion, be entitled to declarator of marriage, notwithstanding any subsequent deterioration or breakdown of the relationship. In the event, however, the latter point does not arise, because I am satisfied on the evidence that cohabitation as husband and wife continued to the date of the deceased's death.

[21] According to the pursuer, she always introduced the deceased as "Pat" or "my husband" or (jokingly) "the old man". He introduced her as "the wife" or "the missus". They wore rings which they had given each other on the ring fingers of their left hands. Some people called the pursuer "Mrs Vosilius", and others "Mrs Cunningham". She used the former name more often when the deceased was working for British Rail and she had a travel pass in that name, but not exclusively in that context. When her sons were at school, she continued to use the name Cunningham in that context. People called the deceased "Pat Cunningham". He did not have any problem with that. When it happened, he allowed it to pass. She offered the view that those who addressed him in that fashion must have thought they were married. She was registered on the voters' roll as "Sarah Cunningham", and he was so registered as "Patrick Vosilius". That was because they were not "legally married" and it would be "illegal" for her to be registered as "Sarah Vosilius". When the deceased died, the pursuer received a large number of cards (No. 23/18 of process), of which two referred to the deceased as "Patrick Cunningham" or "Mr Cunningham", others referred to him as Pat Vosilius, and some, from work colleagues of the deceased, were addressed to "The Vosilius Family". The pursuer acknowledged that there were members of the deceased's family and of her own who knew that they were not married. Some friends and neighbours knew; others did not: it was not the sort of question that was asked of people. People thought of them as a couple and as a family. She never lied to anyone; she had no need to do so.

[22] The pursuer's second son, Alan, said that when he was a boy his school friends regarded the pursuer and the deceased as married, and called the deceased "Mr Cunningham". "A lot of people just assumed it was Mr Cunningham because all our names is Cunningham". Even at the time of his marriage, many of his friends still thought of the deceased as his natural father, although he accepted that many people at his wedding (the pursuer's friends and members of their families) would know that they were not married. Many neighbours thought that they were man and wife - Mr and Mrs Cunningham. Close friends probably knew that they were not married, but still treated them as a couple. Certain people thought they were married. That remained so at the date of the deceased's death. The pursuer's eldest son, Brian, gave broadly similar evidence. Neighbours regarded the pursuer and the deceased as husband and wife. So too did his school friends. They called the deceased "Mr Cunningham" because they thought he was Brian's father. The fact that there had been no marriage ceremony was known within the family circle, but not widely outside it. Very few neighbours knew. His own wife was only told when she joined the family. Among the deceased's colleagues at work and "on his side of the family" the pursuer was known as "Mrs Vosilius".

[23] Mrs Lochrane, as I have already mentioned, said that in 1971 the deceased was introduced to her by the pursuer as "my husband, Pat". Mr Corke, for the third and fourth defenders, submitted that that evidence was not credible, relating as it did to a period when the deceased was not free to marry. He also suggested that it was incredible that Mrs Lochrane should remember the precise words of a conversation that took place almost thirty years ago. I do not, however, find ground in these submissions for rejecting Mrs Lochrane's evidence on this point. She said that she called the deceased "Mr Cunningham", but it was obvious that she soon came to be on first name terms with him and the pursuer and simply called them "Pat" and "Sadie". She said that she always thought that they were married. She knew of no one who did not treat them as married. Everyone in the street regarded them as husband and wife, Mr and Mrs Cunningham. She first heard him being referred to by the name Vosilius when prayers were being said for him in chapel in the fortnight before his death; she though at first that the priest had given the wrong address. She never knew that either of them had been previously married. Desmond Ringrose, a friend of the pursuer's sons since they were teenagers, knew the deceased as "Pat" or "Mr Cunningham". So far as he was aware, the deceased was the pursuer's husband. Like Mrs Lochrane, he first heard the name Vosilius applied to the deceased shortly before he died. It was only at the deceased's funeral that he found out that he had another family. George Anderson, Brian Cunningham's brother-in-law, understood the deceased to be Brian's father and the pursuer's husband. He said that the pursuer and the deceased were regarded as a couple in the community. It was only after the deceased died that he learned that there had never been a marriage ceremony.

[24] As Dr Clive points out (op. cit., § 05.034):

On these matters Mrs Scott cited as illustrative of the approach adopted by the court Nicol v Bell 1954 SLT 314 at 321, Donnelly v Donnelly's Exr 1992 SLT 13 at 15, Dewar v Dewar 1995 SLT 467 at 473D, Gow v Lord Advocate 1993 SLT 275 at 276H and Shaw v Henderson 1982 SLT 211 at 212.

[25] In the present case I do not consider that the evidence that the pursuer and the deceased were entered in the voters' roll as "Cunningham" and "Vosilius" respectively is of any real significance in the assessment of their repute. The pursuer's evidence was that that was so because she understood that it would be "illegal" for her to register by the name "Vosilius" (c.f. Donnelly at 15D; Nicol at 321).

[26] The present case is unusual, so far as the use of names is concerned, in that there is evidence that both the pursuer and the deceased were inconsistent in their use of the two surnames. The conclusion that I reach is that on the whole the pursuer continued to use the surname "Cunningham", at least while her sons were growing up. That is entirely understandable. What is particularly unusual is the evidence that the deceased came to be known as "Mr Cunningham". I do not think that the evidence goes so far as to show that the deceased adopted the name "Cunningham", but there is a sufficient body of evidence, which I accept, to satisfy me that he was so addressed, referred to and thought of by a significant proportion of the local community in which he, the pursuer and her sons lived as a family. That points, in my view, at least as strongly to the pursuer and the deceased being generally reputed to be husband and wife as evidence of adoption of the name "Vosilius" by the pursuer would have done. Improbably though it might at first sight seem that a perception of the deceased as "Mr Cunningham" would survive for the best part of twenty years, there is evidence that it did, both in the cards sent to the pursuer at the time of the deceased's death referring to him as "Pat Cunningham" or "Mr Cunningham" and in the evidence of Mrs Lochrane and Desmond Ringrose of only discovering that the deceased's name was Vosilius when prayers were said for him in chapel shortly before his death. Mr Corke submitted that it was incredible that Mrs Lochrane should have continued to think of the deceased as "Mr Cunningham", but her evidence of her surprise on hearing him referred to as Patrick Vosilius struck me as genuine. Mr Corke drew my attention to a passage in Ackerman (at 6) where Lord Nimmo Smith dismissed the fact that the deceased in that case had allowed himself on occasion to be introduced as the pursuer's husband as "no more than a convenient usage when meeting ... people", but in my view the deceased's acquiescence in the application to him of the name Cunningham went far beyond that. The evidence that the pursuer was sometimes known as "Mrs Vosilius" is in my view less persuasive. Given the context in which the travel pass was obtained (a spouse's right to concessionary travel, albeit the conditions of entitlement were not clearly explained in evidence), I do not consider that it can be regarded as casting any real light on the general repute as to the relationship between the deceased and the pursuer. There was, however, evidence from the pursuer and her son, Brian, that she was known as "Mrs Vosilius" by the deceased's colleagues at work, and that is borne out, albeit not very explicitly, by the terms of cards sent to the pursuer by such colleagues at the time of the deceased's death. It seems to me, however, that the fact that the pursuer and the deceased were known in one context as Mr and Mrs Vosilius, and in another as Mr and Mrs Cunningham tends to strengthen, rather than weaken, the ground for holding that they were generally reputed to be married.

[27] The evidence given by the third and fourth defenders is not, in my view, of much weight in relation to the matter of repute. As the children of the deceased's former marriage, they were in a position to know, and did know, that the pursuer and the deceased had never gone through a ceremony of marriage with the pursuer (c.f. Shaw at 212; Dewar at 473E). It was therefore entirely understandable that they should not regard the pursuer and the deceased as married, however long and close the cohabitation may have been and irrespective of whether the cohabitation was of a matrimonial quality. I therefore do not regard their evidence as destructive of the pursuer's case of repute. The point does not, however, rest exclusively on the evidence of the defenders. It was clear in the evidence of the pursuer and her sons that they recognised that there were people who "knew" that she and the deceased were "not married". It seems to me to be virtually inevitable that that would be so. In my view, however, it is reasonably safe to infer that that evidence related to people who knew that there had been no ceremony of marriage, who equated being married with having gone through a ceremony of marriage, and who therefore "knew" that they were not married. I do not consider that the existence of a number of persons in that category rules out a conclusion that the pursuer and the deceased were generally reputed in the community in which they lived to be man and wife.

[28] Mr Corke submitted that the evidence of repute was not acceptable in quality or quantity. The pursuer had an obvious interest in the matter. Her sons, likewise, had an obvious interest to support her in her contention that she and the deceased were married. Only one neighbour, Mrs Lochrane, gave evidence, and for reasons which I have already mentioned in discussing her evidence, Mr Corke submitted that she should not be regarded as credible. George Anderson should also be regarded as virtually a member of the pursuer's family. Desmond Ringrose was not a friend or neighbour of the pursuer and the deceased, but a friend of the pursuer's sons. That paucity of independent evidence was to be contrasted, by way of illustration, with the twenty seven witnesses who were led in Walker v Roberts 1998 SLT 1133 (see page 1134D). It was to be noted that the priest who was mentioned by Alan Cunningham as having been a guest at his wedding and a friend of the family (No. 33 of process, page 11B) had not been led as a witness. Even within the pursuer's own family, only two of her four sons had given evidence. In my view the sufficiency and acceptability of the evidence of repute is not a matter of arithmetic. While it is no doubt true that the pursuer has an interest in establishing the factors necessary to make a case of marriage by cohabitation with habit and repute, and that her sons have an interest to support her in that, I was favourably impressed by the evidence of the pursuer and her son Brian. I did not have the benefit of seeing her son Alan give evidence, but the transcript of his evidence contains nothing that suggests to me that he was not giving his evidence candidly. All three gave evidence which contained elements helpful to the pursuer's case and elements unhelpful to it. I regarded all three as credible and reliable witnesses. Although Mrs Lochrane, George Anderson and Desmond Ringrose constitute a relatively small sample of the community in which the pursuer and the deceased lived, I regarded all of them as acceptable witnesses. I am satisfied that the evidence establishes that the pursuer and the deceased, notwithstanding the variation in the names by which they were known in different contexts, and notwithstanding the existence of a number of people who were aware that they had not gone through a ceremony of marriage, were sufficiently generally reputed to be husband and wife.

[29] The findings which I have made so far as to cohabitation and repute are in my opinion sufficient to raise the presumption that the pursuer and the deceased tacitly consented to be married. The question which remains to be considered is whether there has been led evidence that rebuts that presumption and shows that, despite their cohabitation for almost twenty years and their being generally regarded as husband and wife, it would be wrong to infer that they consented to marriage.

[30] On the subject of the rebuttal of the presumption of tacit consent, Mrs Scott referred to Gow, in which Lord Caplan held that if the presumption had arisen (which it did not, because there was insufficient evidence of undivided repute), it would have been rebutted by evidence that the deceased's attitude was that she would not marry the pursuer. She referred also to Mackenzie v Scott 1982 SLT (Notes) 9, in which evidence of the pursuer that she wanted to get married, had discussed doing so with the deceased, and had contemplated doing so at a specified future date was held to be destructive of the presumption that tacit consent had already been exchanged. Thirdly, Mrs Scott referred to Hendry v Lord Advocate 1930 SC 1027. In that case the Lord Ordinary (Lord Mackay) held (at 1029) that the presumption of tacit consent was negated by the pursuer's own evidence that the deceased had proposed marriage to her from time to time during the cohabitation, that they intended to be married, but had put it off, and that the opportunity had eventually been taken away by the death of the deceased. In the Inner House decree of declarator of marriage was granted. The evidence of intention to be married in the future was not expressly mentioned by the judges in the Inner House, but appears not to have been regarded as rebutting the presumption. Mr Corke referred to Cossar v Cossar 1901 9 SLT 44, in which the parties had given statutory notice of their intention to marry, but had then not proceeded with the ceremony. The pursuer was asked, "Why didn't you go to the minister?" and replied, "Because we were just quite happy together and never bothered ourselves. ... [We] were quite happy as we were." That was held to be equivalent to saying that they had departed from their intention to marry and were content to live in concubinage.

[31] The pursuer gave evidence that in 1976 (i.e. when the deceased became free to marry), she and he became "engaged". They exchanged rings. She wore hers on the ring finger of her left hand. When he gave her the ring the deceased said, "That's it, hen", or words to that effect. They inquired about the possibility of getting married but, being Roman Catholics, found out that if they, as divorced persons, went through a civil ceremony of marriage, they would have to "give up their faith" (as the pursuer put it) and could not take the sacraments. They therefore did not pursue the matter of a civil ceremony. They were "quite happy the way things were". They counted themselves as a couple, as man and wife. In cross examination the pursuer was asked if she regarded herself as engaged at the time of the deceased's death, and replied, "Of course I was engaged". She went on to say that they had never made plans for any set date. In re-examination, she reiterated that the deceased and she regarded each other as husband and wife. It was her husband she lost when he died, not just her fiancé.

[32] Alan Cunningham was asked in cross examination (No. 33 of process, page 24E), "Did your mother and Pat senior intend to get married in the future?" He replied, "Well I believe they were engaged, I think she stated that herself, they were engaged to be married. When the wedding was to be I don't know." Elsewhere in his evidence, however, he said more than once that the pursuer and the deceased regarded themselves as husband and wife. Brian Cunningham said, in cross examination, that so far as he knew it was always the intention of the pursuer and the deceased to get married. Elsewhere in his evidence, however, he said that they always regarded each other as husband and wife.

[33] The presumption of tacit consent may be rebutted by evidence that throughout the cohabitation one party maintained opposition to marriage (as in Gow). There is, however, nothing in the evidence in the present case to suggest that that was the attitude of either the deceased or the pursuer. The presumption may also be rebutted by evidence that shows that the parties are content to live together in what is somewhat archaically described in the cases as "concubinage". Mr Corke suggested that the pursuer's evidence that she and the deceased were "quite happy the way things were" could be equated with the evidence of the pursuer in Cossar that she and the deceased were "quite happy as [they] were", as an expression of contentment with concubinage. In my view the circumstances of the present case are readily distinguishable from those of Cossar. In Cossar there was no obstacle to the parties' marriage, they had taken active steps towards regular marriage by giving the requisite statutory notice, and had then simply fallen into inertia. Here there was an obstacle to the marriage, even after both the pursuer and the deceased were legally free to marry. As divorced persons they could not marry in their own church. That church would not countenance civil marriage, and would (the pursuer understood) have excluded them from the sacraments if they had undertaken such a marriage. As I understand the pursuer's evidence, which on this point strikes me as ringing true, it was because of those obstacles that they did not go through a ceremony of marriage. It would, in my view, be wrong to infer that they did not do so simply because they were content to continue cohabiting but unmarried to each other.

[34] In my view evidence that a couple were engaged to be married, and continued in that state throughout the period of cohabitation, might well afford ground for concluding that there had been no tacit exchange of consent to present marriage (see, for example, Mackenzie and Ackerman). It is, however, in my view a matter of circumstance. That is, it seems to me, borne out by the decision of the Inner House in Hendry to grant decree of declarator of marriage despite the passage of evidence quoted by the Lord Ordinary in the first full paragraph on page 1029. When there is mention in the evidence of engagement, it is in my view necessary to seek to discover what precisely the witnesses who mention it mean. It is necessary to look at the whole of the witnesses' evidence, and guard against taking isolated answers out of context. In the present case, each of the three witnesses who mentioned engagement or intention to marry at a future date also gave evidence that the pursuer and the deceased throughout their cohabitation regarded each other as husband and wife. I do not consider that any of the witnesses was truly alive to the apparent inconsistency in their evidence. It seems to me that the explanation is to be found in the tendency to equate marriage with the ceremony of marriage. On the part of the pursuer herself, it seemed to me that there was also a certain romantic element in her insistence that she and the deceased were engaged. Here, as in Hendry, the period of cohabitation was approximately twenty years. Nothing had changed to remove the religious obstacles to a formal ceremony of marriage that had existed in 1976. No attempt had been made to "fix a date". The exchange of rings in 1976, which might be seen as the occasion of the engagement, might also be seen as the commitment to cohabitation of a matrimonial nature. The deceased's somewhat un-poetic declaration, "That's it, hen", might be thought to indicate that something permanent had been effected by the exchange of rings. But these are all minor circumstances. What primarily leads me to conclude that the presumption of tacit consent has not been rebutted is that the weight of the evidence is that the pursuer and the defender were regarded, from 1976 or even earlier, as husband and wife, not only by the pursuer's children and by others in the community in which they lived, but also by themselves.

[35] It seems to me to be doubtful whether any practical purpose is served by identifying the date on which a marriage by cohabitation with habit and repute was constituted, but section 21 of the Marriage (Scotland) Act 1977 assumes that the court will determine the date. The philosophical difficulties which attend the exercise are discussed by Dr Clive (op. cit., §§ 05.040 - 05.051). I do not propose to discuss the issue in detail. It will suffice for practical purposes if I find that in the circumstances of this case the date on which the marriage between the pursuer and the deceased was constituted was 6 November 1977, i.e. a year after the deceased became free to marry.

[36] The second conclusion of the summons is for interdict of the first defender as executor of the estate of the deceased from distributing the estate of the deceased without regard to the pursuer's interest therein as widow of the deceased. Had the first defender appeared at the proof it might have been possible to deal with this aspect of the matter without pronouncing interdict. In the event, however, I am satisfied that it is appropriate to grant interdict in terms of the second conclusion. No opposition was offered on behalf of the compearing defenders to my taking that course.

[37] I shall accordingly sustain the pursuer's pleas-in-law, repel the defenders' pleas-in-law, and grant decree of declarator of marriage in terms of the first conclusion of the summons and interdict in terms of the second conclusion of the summons. I shall reserve the question of expenses.