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OUTER HOUSE, COURT OF SESSION
[2008] CSOH 95
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F179/07
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OPINION OF LORD TURNBULL
in the cause
LINDA COLLIE
PATERSON or BAIN
Pursuer;
against
RODERICK HAY BAIN
Defender:
ญญญญญญญญญญญญญญญญญ________________
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Pursuer: Wylie, Beveridge & Kellas
Defender: Innes, Morisons LLP
27 June 2008
Introduction
[1] This
is an action of divorce. The parties
married on 31 July 1975 and
have two sons, both now adults. The
pursuer has a daughter by a previous marriage.
In addition to decree of divorce the pursuer seeks various financial
orders. The defender also seeks orders
in relation to the parties' heritable property.
One of the contentious issues between the parties is the date on which
they ceased to cohabit. The pursuer
contends that this date was 16 May
2007 whereas the defender contends that it was 15 December 2004. No doubt the resolution of this issue will be
of relevance to the valuation of the financial claims outstanding. Evidence was led before me by way of a
preliminary proof, restricted to establishing the date on which cohabitation
ceased.
The Pursuer's Case
[2] The
pursuer gave evidence herself and led evidence from her son Crichton Bain. The pursuer gave a background to the parties'
marriage and to the difficulties which had come to be present. She and her husband had lived for many years
in the family home, Denside House, at Torphins, Banchory. When their sons were younger they were both
very keen swimmers and the parties encouraged this interest. For this and other reasons they decided in
1990 to purchase a flat in Aberdeen,
at 12A Whitehall Mews. Their son Crichton had lived in the flat
whilst at university in Aberdeen. When he left in about 1999 the parties had
the property refurbished and used it for themselves. They came to spend many weekends at the flat
and to spend the remainder of the week at Denside House. They had a mutual interest in football and
regularly attended Pittodrie on Saturday afternoons. The flat was convenient for this purpose and
generally to permit them to socialise in Aberdeen. In addition, the pursuer worked in Aberdeen. She worked part time but for long days. It suited for this purpose to stay in the
flat on Sunday and Monday evenings.
[3] In
September 2003 the parties took a holiday together in Australia
and Singapore. Some time thereafter the pursuer discovered
that whilst on holiday the defender had visited a prostitute and had contracted
a sexually transmitted disease. She discovered that it had been passed onto
her. This news came as a great shock to
her. The defender was very remorseful
and they attended counselling together, although he only participated in one
session. Thereafter, from the pursuer's
perspective, a healing process commenced with the defender trying to regain her
trust. Despite this process, in October
2004 the pursuer consulted a solicitor and on her instructions a letter was
sent to the defender, dated 8 October
2004, in which it was stated that she considered the marriage to
have broken down irretrievably. It would
seem that the defender ignored this letter and may not even have opened it.
[4] In
about December 2004 the pursuer came across an e-mail sent by the defender to
what seemed to be a prostitution site and also discovered that her husband
appeared to have been advertising his dental practice for sale, a matter she
had known nothing of. She confronted him
with evidence of these matters and a row ensued. The defender left Denside House saying he was
going to live at the flat. On the
pursuer's evidence he remained living there thereafter but visited her at
Denside House, sometimes staying for short periods of time, and she regularly
stayed with him at the flat. On her view
of matters the parties continued to live as husband and wife but in less than conventional
circumstances. Her position was that
throughout, and until May 2007, she had hoped and expected that they would
return to live together full time in a conventional married style. To explain this view she was taken through a
history of her contact with the defender throughout this period of time. She gave this evidence with the assistance of
diaries which she had kept and which were lodged as productions. In these diaries she had noted the dates on
which she had spent the weekend at the flat in Aberdeen
and the dates on which the defender visited Denside House. She had also noted other contact which they
had together. In addition to spending
time together in these ways the pursuer explained that she and the defender had
holidayed together. By reference to the
diaries she explained that they had gone on a cruise to South
America over the period of Christmas and New Year 2005 to
2006. In September 2006 the defender had
taken her on holiday to Paris to
celebrate her 60th birthday.
In the early part of 2007 they had looked at properties together in
various locations. In February the
defender had suggested that she should put a deposit on a property. In May of 2007 they had visited the Isle
of Skye together.
[5] Later
in May of 2007 the pursuer came to suspect that the defender had been in
contact with other women through adverts in newspapers. She confronted him with what she had
learned. She decided that their marriage
was over and instructed that divorce proceedings be commenced. She had not
spent time with him since.
The Defender's Contentions
[6] The
defender's contention was that after the December 2004 argument he had been put
out of the matrimonial home. He accepted
that thereafter he and the pursuer spent time together in the ways described by
his wife, but disputed that she stayed at the flat in Aberdeen
as often as she claimed. His evidence
was that when she did so it was essentially as a convenience for her work and
that on such occasions he generally slept on the couch. He accepted that they had holidayed together,
that he had bought her gifts, that they had socialised together and had
regularly attended football matches together.
He explained that when they did so they would frequently have a meal
afterwards in Aberdeen and then go
their separate ways. The defender's
account of matters was that he had not wished a divorce and had frequently
asked the pursuer to permit him to return to live at Denside House. According to his evidence, she had not
allowed him to do so, but had held open the possibility of reconciliation. He had frequently asked her to take him back
and was waiting for her to give a definitive answer. His contention was that he had arranged
holidays for them, bought her presents and kept in contact in the hope that
matters would be resolved between them. He was referred to letters of 28 November 2006 and 24 May 2007, written by him in
response to letters from the pursuer's solicitor, in which he set out his
understanding of their circumstances.
Submissions
[7] In
presenting her submission Miss Wylie recognised that in three letters between
March 2005 and May 2007 (numbers 6/22, 6/23 and 6/25 of process) the solicitors
acting for the pursuer had written to the defender stating that she considered
the marriage to have broken down irretrievably.
Despite the terms of these letters Miss Wylie contended that the date on
which the parties ceased to cohabit was May 2007. She drew my attention to the terms of section
10(7) of the Family Law (Scotland) Act 1985, which provides that in identifying
the date on which the parties cease to cohabit no account is to be taken of any
cessation of cohabitation where the parties thereafter resumed cohabitation,
except where the parties ceased to cohabit for a continuous period of 90 days
or more before resuming cohabitation for a period or periods of less than 90
days in all. Miss Wylie's
contention was that whilst there may have been times when the parties were not
living together as man and wife there were also times when, fairly viewed, they
were. Accordingly, on this approach,
there was no period of 90 days or more between December 2004 and May 2007 when
they were not having conjugal contact or spending time together in ways which
fell to be defined as living together as husband and wife. According to this submission the period
between December 2004 and May 2007 was one which was characterised by regular
mini reconciliations between the parties.
She referred me to the cases of Banks
v Banks 2005 FamLR 116, Brown v Brown unreported 21 June
1996, Brown v Brown unreported 27 May 2003 and to Clive on Husband and Wife
pages 398 - 402 and 444.
[8] For
the defender, Miss Innes submitted that the question of when the parties ceased
to cohabit was one which had to be determined in the context of their own
marriage. A significant change in their
relationship occurred in December 2004 and thereafter their relationship was
clearly different from what had preceded.
It was not an unconventional marriage, it was a different type of relationship. That the parties had not reconciled was
evidenced by the fact that throughout the relevant period the pursuer was
consulting her solicitors. Their
repeated assertions that the marriage had broken down irretrievably was
inconsistent with a continuing but unconventional married life. On her submission the evidence vouched the
conclusion that the parties had remained in contact, on a friendly basis and
that throughout most of the period at least, there was an ongoing question over
whether they would return to living together as man and wife, or whether the
efforts made to bring this about would come to nothing.
Discussion
[9] There
was clear evidence of the parties spending time together after December
2004. Yet at the same time it was also
clear that they had not returned to full time cohabitation in any conventional
sense. There was evidence that the
defender had engaged in conduct which was consistent with a wish on his part to
return to a normal relationship. As was
noted in the pursuer's diary, he had taken her roses on Valentine's day. He arranged holidays for them. He arranged to celebrate her birthday and
their wedding anniversary. However these
efforts did not result in him returning to live at Denside House. Nor did they result in the pursuer moving in
to the flat in Aberdeen. The pursuer's evidence was that in the early
part of 2005 everything continued as normal and their marriage continued as
before. This was an unrealistic and
inaccurate assessment of their situation.
At various times in her evidence, when taken to entries in her diaries
recording visits to or by the defender, the pursuer commented that their
relationship was good at that point and that there were no problems at
all. Despite this their circumstances
did not alter. Such comments made sense
in the context of a couple who lived apart and were working towards a
reconciliation but were very difficult to understand otherwise. She repeatedly stated that they had lovely or
wonderful times together on their various holidays, but offered no explanation
as to why they then went their separate ways on return. In the same vein, she stated that they were
both miserable when apart, that the defender regularly told her this and that
they both wanted everything to be fine.
Why, on this account, they did not reconcile in any conventional sense
was left unexplained. The letters
written by the pursuer's solicitors went some way to providing an answer to
this question. In March of 2005 (No.
6/22) they wrote asserting that the pursuer considered the marriage to have
broken down irretrievably, noted that the defender had moved out of the
matrimonial home and requested financial information from him prior to taking
steps to dissolve the marriage. In
October 2006 (No. 6/23) they wrote pointing out that they acted for the pursuer
in connection with the breakdown of the marriage. In this letter they noted that certain
attempts had been made to effect a reconciliation but that their client's view
was now that the marriage had broken down irretrievably. They explained that she wished them to enter
negotiations regarding a financial settlement prior to raising divorce
proceedings and said the following:
"It is our
client's view that the relevant date of separation would be December 2004".
In May of 2007 (No. 6/25) the same
solicitors wrote to the defender pointing out that they understood there had
been a brief reconciliation over recent weeks leading to a further
separation. This correspondence appeared
to me to be consistent with the defender's account that the pursuer never
reached the stage where she was prepared to allow him to return to live with
her. His evidence was consistent with
the terms of his own letter dated 28
November 2006 (No. 6/24) to the pursuer's solicitors in which he
stated that "during the past two years there was reconciliation in the
air". Overall the evidence led me to
conclude that the parties were living in a state of civilised separation, in
which the pursuer had not ruled out the possibility of permitting an eventual
reconciliation. From time to time she
appeared to contemplate bringing matters to a head by instituting divorce
proceedings, was persuaded out of this and finally decided to do so in May
2007. The evidence of Crichton Bain did
not advance matters one way or the other.
[10] The question of when the parties ceased to cohabit is one of
fact to be determined having regard to section 27(2) of the Family Law
(Scotland) Act 1985, which provides that the parties to a marriage shall be
held to cohabit with each other only when they are in fact living together as
man and wife. It is a matter to be
decided objectively. Accordingly the
examples of decisions arrived at by other judges in other cases may not be of
particular assistance. However, what is
clear from the cases to which my attention was drawn is that the nature of the
relationship which existed between the parties during the period of admitted
cohabitation may be a factor which casts light on the nature of any subsequent
relationship. So in the case of Banks
v Banks Lord Carloway held that
throughout a period of years when a husband worked abroad and often stayed in
hotels on his return to Scotland, the parties could still be categorised as
living together as husband and wife.
This was because of the similarity of this relationship to the one which
existed prior to his departure. The
parties had long prior to his departure ceased to have sexual relations and
spent little or no time together, with the pursuer working constantly and
living much of the time in hotels. By
contrast, in the present case, the parties lived in a recognisably conventional
marriage up until December 2004. The
defender's encounter with a prostitute during 2003 clearly triggered a deterioration
in their relationship. Although the
pursuer made efforts to keep their marriage intact the discoveries which she
made at the end of 2004 were sufficient to underpin the lack of trust already
present. From that point onwards an
obvious and quite radical alteration in their relationship occurred. Various entries in the pursuer's diaries, as
explained by her in evidence, to my mind confirmed that thereafter they were
living separately but contemplating reconciliation. Accordingly I was satisfied, on the balance
of probabilities, that the parties ceased cohabiting as at 15 December 2004 and that this is the relevant
date for the purposes of section 10(3)(a) of the Family Law (Scotland)
Act 1985.
