Scottish Sheriff Court Decisions

SHERIFFDOM OF GRAMPIAN, HIGHLANDS AND ISLANDS AT LERWICK

Judgement

Of

Sheriff Philip Mann

In causa

C K

Pursuer

Against

B K

Defender

 

Lerwick 26 June 2013 Sheriff Mann

The Sheriff, having resumed consideration of the cause, including the evidence led at proof and the pursuer's minute for decree of divorce with supporting affidavits:-

Finds the following facts admitted or proved:-

1. The pursuer is C K. The defender is B K.

2. The parties were married on 7 August 1978. They separated on 29 January 2004.

3. There are five children of the marriage, one of whom is still under the age of sixteen. That child is C M K who was born on 16 July 1997.

4. There is no prospect of the parties reconciling.

5. The pursuer has shouldered virtually the entire burden of caring for and providing for the children of the marriage since the date of the parties' separation. She has thereby suffered economic disadvantage which is conservatively assessed at the sum of £10,000. The defender has gained a corresponding economic advantage.

6. As at the date of their separation the parties were in partnership in the business of [redacted] which operated from premises at [redacted], owned jointly by the parties. The net value of the business at that time, including the value of the business premises, was £325,000. This included goodwill valued at £360,000.

7. Immediately after the date of separation the defender sought to dissolve the partnership. Thereafter, he ran said business to the exclusion of the pursuer and, to all intents and purposes, as a sole trader.

8. In about mid August 2004 the defender removed the whole stock in trade from the business premises and announced to his staff that he was closing the business down and arranging to have himself declared bankrupt.

9. At about the time referred to in the foregoing finding in fact the pursuer was taking an evening walk when she passed the business premises and noticed that they were empty.

10. The pursuer obtained an interim interdict against the defender restraining him, inter alia, from selling any of the stock of the business.

11. As a result of said interdict the defender returned the stock to the premises and recommenced trading.

12. The pursuer acknowledged to the defender, orally and by way of a text message, and to at least one of his staff, orally, that the defender would not be considered to be in breach of interdict by selling stock in the normal course of trade.

13. Thereafter, the defender traded only for a few days and then abandoned said business and moved from Shetland on or about 21 August 2004.

14. On or about 23 August 2004 the pursuer commenced an identical business on her own account under the name [redacted], trading from said premises previously occupied by the partnership and by the defender.

15. The stock in trade as at 23 August 2004 was comprised partly of items which formed part of the stock in trade as at the date of separation and partly of items acquired by the defender during the course of his business after the date of separation.

16. The pursuer effectively acquired what remained of the business which existed as at the date of separation. The net value of the business at the date when the pursuer took it over is not known. The value of the goodwill of the business at that time was approximately £170,000.

17. During the currency of this action, the defender raised an action of count, reckoning and payment in this court against the pursuer in respect of the said business. Said action was dismissed with an award of expenses in favour of the defender in that action, that is the pursuer in this action. Said award of expenses remains unsatisfied.

18. The defender was sequestrated on 9 January 2006 at his own instigation. He was motivated to an extent by a desire to cause difficulties for the pursuer in regard to a financial settlement between the parties.

19. The net value of the parties' business has been shared fairly between the parties.

20. The net values of the following matrimonial assets which existed as at the date of separation have been shared equally between the parties, namely:-

a) The dwellinghouse [redacted], which was the matrimonial home.

b) The croft known as [redacted]. The value of this asset increased considerably as a result of planning permission obtained by the pursuer after the date of separation in the face of the defender's opposition.

c) The commercial premises at [redacted] from which the said business was operated.

The pursuer purchased the defender's interest in said assets from the defender's trustee in sequestration for full values as at the dates of the relevant transactions.

21. The pursuer had paid a planning fee of £1,000 in respect of her planning application for the [redacted]. This was reflected in the price negotiated with the defender's trustee in sequestration in respect of the pursuer's purchase of the defender's interest in the Croft.

22. The defender lived in the matrimonial home for a period following the separation. During this period the pursuer lived with the children in rented accommodation in Lerwick. The pursuer resumed occupation of the matrimonial home with her children in or about November 2004.

23. Upon resuming occupation of the matrimonial home the pursuer discovered that it had been damaged. The pursuer had to expend a significant sum of money to effect necessary repairs. This expenditure was taken into account in the price agreed between the pursuer and the defender's trustee in sequestration for the purchase by the pursuer of the defender's interest in said dwellinghouse. Accordingly, the pursuer has been compensated for said expenditure.

24. The damage to the dwellinghouse was caused by the defender. The defender had also jammed a screwdriver in the electrical fusebox of the dwellinghouse. It lay undiscovered by the pursuer for a short period of time. This represented a danger to the pursuer and the children who were living with her in the dwellinghouse. The pursuer arranged to have the fusebox rendered safe and, in the event, no harm befell the pursuer and her children.

25. The defender's trustee in sequestration expressed no interest in the contents within the matrimonial home and the croft on the basis that their value was minimal.

26. Each of the parties has retained, or sold and retained the proceeds of, items of contents, furnishings and other moveable property. Except as otherwise found in fact neither the values of such items nor the extent to which the parties have thus benefited have been ascertained.

27. Number 47 of process is a list of matrimonial assets in the possession of the pursuer as at the time of the latest proof in this action which the pursuer has made available for collection by the defender to take as his property as part of the settlement of financial matters between the parties. The values of said items have not been ascertained.

28. As at the date of separation the parties jointly owned a motor pleasure yacht which had a negative net value. Said yacht was sold after the date of separation leaving a debt of £19,652.92. Following the date of separation the pursuer contributed £3,000 over a period of 12 months to said debt, of which £1,250 came from her own resources.

29. As at the date of separation the parties jointly owned various life assurance policies. These were encashed and the proceeds were split equally between the pursuer and the defender's trustee in sequestration.

30. As at the date of their separation the parties jointly owned a Sun Alliance policy number [redacted]. Said policy was surrendered and the proceeds used towards repayment of the secured loan on the business property at [redacted]. In this way the proceeds of said policy were effectively split equally between the pursuer and the defender's trustee in sequestration.

31. The defender secured an economic advantage after the date of separation as a result of premiums paid by the pursuer in respect of said Sun Alliance Policy No [redacted]. Said advantage is reasonably estimated at £7,333. The pursuer suffered a corresponding economic disadvantage.

32. As at the date of separation the defender owned two top floor flats at [redacted], both of which were matrimonial assets. Both flats were sold after the date of separation. The balances outstanding at that time in Clydesdale Bank Joint A/c number [redacted] and the defender's Personal Loan A/c number [redacted], which stood at £7305.59 and £15,000, respectively, at the date of separation, were repaid from the proceeds of sale of the flats. A sum of £17,525.13 due to Burns and Associates for repair work to the flats, which was a matrimonial debt as at the relevant date, was also deducted from the proceeds of sale.

33. Thereafter, the net free proceeds of sale of the top left flat at [redacted] after settlement of secured debts amounted to £18,548.81 and were paid over to the defender.

34. Thereafter, the net free proceeds of sale of the top right flat at [redacted] after settlement of secured debts amounted to £17,509.32 and were consigned in court in this process.

35. After the date of separation the pursuer sold various paintings which were matrimonial assets and for which she received £5,000. The pursuer used said funds to reduce the matrimonial debt. Accordingly, the value of the paintings falls to be left out of account in determining the issue of financial provision.

36. After the date when she commenced business on her own account the pursuer paid a total of £9,000 to Clydesdale Bank who used said payments to reduce the debit balances on the parties' joint account and on the defender's account with that bank, both of which were matrimonial debts.

37. After the date of separation each of the parties made payments towards matrimonial debts in addition to those specifically hereinbefore recorded. The extent of those payments has not been ascertained.

38. The defender perpetrated a fraud on [redacted] in relation to prescription charges. The moneys received as a result were paid to the business in which the parties were partners. The pursuer was not responsible for the fraud and was absolved of any liability in respect of it. Nonetheless, the pursuer benefited from receipt by the parties' business of these moneys. The debt due to the [redacted] as at the date of the parties' separation stood at £42,400.

39. The following table details the net value of matrimonial property yet to be divided between the parties. Where the "Value" column in relation to any particular item is blank this indicates that the value thereof has not been ascertained:-

Assets in Name of Pursuer
Children's Mutual Policy Number []	2,222.28
Norwich Union Pension Policy Number []	28,710.07
Standard Life Pension Policy Number []	19,991.00
Scottish Amicable Policy Number []	36,067.00
Standard Life Policy Number []	33,328.67
Toyota Hilux []	1,000.00
Lloyds TSB A/c Number []	750.00
144 Avia Shares + Alliance & Leicester	1,700.00	123,769.02
Assets in Name of Defender
Scottish Amicable Policy No []	5,000.00
Eagle Star Policy Number []	5,797.00
Scottish Provident Policy Number []	17,963.00
Norwich Union Policy Number []	4,493.75
Scottish Provident Policy Number []	2,450.00
Scottish Widows Policy Number []	2,205.00
Legal & General Policy Number []	2,584.00
Lincoln National Policy Number []	8,237.00
Norwich Union Policy Number []	13,165.13
681Friends Provident Shares (Plus Barclays, Aviva and Abbey National)	3,240.36
Scottish Amicable Pension Policy Number [] etc	46,140.00
Scottish Life Pension Policy Number []	19,677.74
Guardian Pension Policy Number []	8,891.96
Clerical Medical Pension Policy Number []	15,490.00
Norwich Union Pension Policy Number []	20,114.00
Norwich Union Pension Policy Number []	6,300.51
Norwich Union Pension Policy Number []	9,525.16
AXA Sun Life Pension Policy Number []	14,385.65
Norwich Union Policy Number []	3,669.00
BT Wayleave Payment re []	6,000.00
Top Right [], Aberdeen (net free proceeds)	17,509.32
Top Left [], Aberdeen (net free proceeds)	18,548.81
Permanent Life Policy Number []
Norwich Union Policy Number []
Guardian Policy Number []	0.00
Norwich Union Pension Policy Number []		251,387.39
		375,156.41
Liabilities
Joint
Net negative value of Cabin Cruiser	19,625.92
Clydesdale Bank Joint A/c No []	7,309.59	26,935.51
		348,220.90
Pursuer
Pursuer's Finance Loan	12,000.00
Pursuer's Tax Bill	32,774.00	44,774.00
		303,446.90
Defender
Defender's Personal Loan []	15,000.00
Defender's Liverpool Victoria Loan	10,323.74
Defender's Tax Bill	11,296.56
Bank of Scotland A/c Number []	1,159.00
Bank of Scotland A/c Number []	4,837.32
First National A/c Number []	757.56
HFC Bank A/c Number []	17,170.42
HFC Bank A/c Number []	1,532.17
HFC Bank A/c Number []	4,478.67
Cauldwell Communications Limited	162.03
Residual Liability to Mercedes (Daimler Chrysler Services UK)	10,298.24
Residual Liability to Toyota Finance (Capital Bank PLC)	13,424.00
Gerber Coburn	1,013.53
Signet Armorlite Europe Limited	3,766.76
Debt to []	42,400.00
Defender's Monument Credit Card	151.00	137,771.00
		165,675.90
Add Back:
Clydesdale Bank Joint A/c no [] repaid from proceeds of sale of flat	£7,305.59
Defender's Personal Loan [] repaid from proceeds of sale of flat	15,000.00	22,305.59
		£187,981.49

 

40. The following table shows the assets retained and the debts taken over by the pursuer. It shows the shortfall to the pursuer in the absence of any award of a capital sum in her favour, taking account of the assets and debts retained or taken over by her and economic disadvantage suffered by her:-

Pursuer's Half share of net value		93,990.75
Assets Retained by Pursuer
Children's Mutual Policy Number []	2,222.28
Norwich Union Pension Policy Number []	28,710.07
Standard Life Pension Policy Number []	19,991.00
Scottish Amicable Policy Number []	36,067.00
Standard Life Policy Number []	33,328.67
Toyota Hilux []	1,000.00
Lloyds TSB A/c Number []	750.00
144 Avia Shares + Alliance & Leicester	1,700.00	123,769.02
		-29,778.28
Debts Taken Over by Pursuer
Pursuer's Finance Loan	12,000.00
Debts reduced by payments to Clydesdale Bank	9,000.00
Payments Towards Debt on Boat 12x250	1,250.00
Pursuer's Tax Bill	32,774.00	55,024.00
		25,245.73
Economic Advantage/Disadvantage
Defender's economic advantage from premiums paid by pursuer on Sun Alliance Policy No [] after date of separation		7,333.00
Defender's economic advantage from the pursuer's support of the children		10,000.00
Sum due to Pursuer		£42,578.73

 

41. The remaining assets and debts were taken over by the defender either directly or through his trustee in sequestration.

42. As a result of his sequestration the only significant assets currently owned by the defender are his pension policies which did not vest in his trustee in sequestration. He is able to earn a living as a [redacted]

43. In contrast to the defender, the pursuer has not been sequestrated. She has been able to acquire the defender's interests in significant items of matrimonial property. Her current resources include a profitable business and an interest in her parents' dwellinghouse amounting to a one third share of its value. Although this was acquired with funds derived from the resources of the parties during the marriage, the defender does not seek to have the value of this interest taken into the calculation of the net value of the matrimonial assets for the purposes of a financial settlement on divorce. The precise value of this interest, as at the relevant date and as at the current date has not been ascertained.

Finds in Fact and Law:-

1. The relevant date for the purpose of financial provision on divorce is 29 January 2004.

2. The marriage of the parties has broken down irretrievably as a result of the defender's unreasonable behaviour.

3. There is no need for any order under section 11 of the children (Scotland) Act 1995 in relation to the child C M K.

 

Finds in Law:-

1. The pursuer is entitled to decree of divorce

2. The question of how the value of the business of [] is accounted for in this action is not res iudicata by virtue of the action of count, reckoning and payment at the instance of the defender and referred to in finding in fact 17.

3. Neither party is entitled to a pension sharing order.

4. An order providing for payment to the pursuer of the funds currently consigned with the sheriff clerk, including the interest accrued thereon, would achieve a fair sharing of the net value of matrimonial property. Such an order is both 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 as required by section 8(2) of that Act.

Therefore:

Sustains the pursuer's plea in law number 1 and divorces the defender from the pursuer; Sustains, in part, the pursuer's plea in law number 5 and makes an order for financial provision whereby, as between the parties, the pursuer is entitled to receive the funds currently consigned in the hands of the sheriff clerk together with all interest accrued thereon; makes no order for payment of said funds and interest meantime but having regard to rule 30.2(1) of the Ordinary Cause Rules ordains the pursuer, at her cost, to obtain and lodge a certificate by an authorised officer of Her Majesty's Revenue and Customs stating that all taxes or duties due by the pursuer to Her Majesty's Revenue and Customs have been paid or satisfied; for the benefit and interest of the pursuer only, continues the cause sine die to await production of the said certificate; except as hereinbefore provided dismisses all pleas in law stated by the parties; for the avoidance of doubt, recalls all interim interdicts previously granted in favour of each of the parties; thereafter, this being a final interlocutor as between the parties, finds the defender liable to the pursuer in the expenses of this action in so far as not already awarded in favour of either party; authorises the pursuer to lodge an account of the said expenses and remits the same when lodged to the auditor of court to tax and to report.

 

 

Sheriff Philip Mann

Note/

Note

1. Introduction

1.1 This action came before me as a proof before answer over 6 days between 21 January 2013 and 5 March 2013. The only preliminary plea extant was the pursuer's plea in law number 4 which was a plea to the relevancy and specification of the defender's averments anent the pursuer having failed to make any payment to him in respect of the business of []. In the event, the pursuer did not insist on this plea. I deal fully with the treatment of the business later in this note.

1.2 At the end of the proof I suggested, and parties agreed, that parties should lodge their submissions in writing. Following the lodging of written submissions I made avizandum on 2 May 2013.

1.3 Both in her written submissions and in subsequent communications to the clerk of court after avizandum had been made the pursuer sought to place before me further evidence in relation to controversial matters. This related principally to the amount of the pursuer's tax debt as at the relevant date; an apparent duplication of one of the pursuer's pension policies in the joint minute of admissions number 46 of process; and the current position with regard to certain of the defender's pension policies. I accept that this resulted purely from the pursuer's misunderstanding of court processes and the significance of the fact that the proof had been closed and that I had made avizandum following receipt of submissions. I am satisfied that the pursuer did not realise that this was inappropriate. Suffice to say that I have not allowed myself to be influenced by these matters and that I have arrived at my judgement solely on a consideration of the evidence adduced in open court, the record of the parties' pleadings, the joint minute of admissions and the parties' legitimate submissions.

1.4 The life of this action has been remarkably long, difficult and tortuous. It commenced in 2004 and only now comes to a conclusion. This action is but one aspect of a much wider and entrenched dispute between the parties that must have cost both of them very significant sums in legal fees and expenses. Ultimately, the parties were unable to fund the cost of legal representation for the proof before me.

1.5 The prior procedure in this case included two days of proof before another sheriff, Sheriff Scott, on 20 and 21 September 2005. A transcript of this evidence was available to me. Given the fact that this evidence before Sheriff Scott was heard under oath I took the view, and parties agreed at the commencement of the proof before me, that it was available for consideration by me. It had more weight than affidavit evidence. It included the whole evidence of Wilson Galloway, an accountant who had prepared accounts for the parties' business. His evidence appears to have been largely uncontroversial except, perhaps, as to the residual value of the goodwill of the business at the point when it was effectively taken over by the pursuer in August 2004. Accordingly, no issue of credibility or reliability of any great significance arises in respect of his evidence. The only other evidence led before Sheriff Scott was that of the pursuer. Her evidence was only partly subject to cross examination because the defender failed to turn up for the third scheduled day of evidence. However, I had the benefit of the pursuer giving evidence before me and was able to form a view as to her credibility and reliability. The pursuer's evidence before me was largely consistent with the evidence she gave before Sheriff Scott.

1.6 I should say that in the transcript of the evidence before Sheriff Scott there is mention of joint minutes of admissions. The process folder also records two joint minutes of admissions, number 22 of process lodged on 20 September 2005 and number 26 of process lodged on 19 June 2006, in addition to the one lodged at the start of the proof before me and which became number 46 of process. These two further joint minutes of admissions are nowhere to be seen within the papers currently held by the court in this process. It has not been possible to ascertain their whereabouts. This is unfortunate but the position would appear to be that the joint minute number 46 of process was intended to be an updated version of the matters agreed between the parties and it thus incorporated rather than added to the matters agreed in the earlier joint minutes. In any event, neither in the proof before me nor in their submissions did parties seek to rely on any joint minute other than the joint minute number 46 of process.

1.7 In the proof before me the pursuer's crave for divorce was not contested. The only issue canvassed was whether there should be an award of financial provision in favour of either of the parties. Neither party led evidence nor made any submissions relating to their ancillary craves. The ancillary craves included craves for interdict by both parties and craves by the defender for sale of heritable properties and for valuation of the parties' business. Accordingly, all of these ancillary craves fall to be repelled.

2. The Parties

2.1 It is convenient at this point to explain my view of the parties. I have to commend them both for their conduct of the proof before me which was undertaken without the benefit of legal representation. Both were polite towards the bench and respectful of the court process during the proof. It was certainly a less daunting experience for me than I had expected when it first became clear that parties would be representing themselves.

2.2 The defender was clearly more comfortable than the pursuer in the court arena and, as a result, was more confident in the manner of presentation of his case. The pursuer was less sure footed. She was clearly nervous and at times she appeared to be overwhelmed by the whole experience. As a result, she occasionally lost focus and allowed herself to indulge in a sustained and bitter attack on the defender. Examples of this were her evidence that the defender had left her to look after the children alone without financial support from him; and her evidence that the defender had consistently said, and displayed by his actions, that his ultimate goal was to ensure that she would get nothing by way of a financial settlement between the parties.

2.3 Notwithstanding the obvious bitterness, I found the pursuer to be generally credible, doing her best to be accurate in her account of the breakup of the marriage and its aftermath.

2.4 The defender adopted a calm and measured approach but this masked a devious and self-serving approach to the whole matter. An example of this related to the parties' business. There were preliminary discussions between myself and the parties to try to narrow down the issues in dispute. During these it was clear that one of the defender's main aims was to secure a settlement in his favour on the basis that the pursuer now had the business which he said had a substantial value both as at the date of separation and as at the date of its takeover by the pursuer. At this point the defender freely accepted that he had taken over the parties' business as at the date of separation and had run it as a separate business as a sole trader. By the time he came to give evidence it seems that he had come to the view that to have adopted that position might not be in his interests and so he openly back tracked and attempted to maintain that he had continued to run the business as the partnership that it had been up to the date of separation.

2.5 No matter how calm and measured the approach of the defender it was clear to me that he had a steely determination to win at all costs and also, unfortunately, a desire to humiliate the pursuer. An example of this came during his cross examination by the pursuer when he smugly, triumphantly and quite needlessly announced that on one occasion after the date of separation the pursuer had shared his bed. He quickly apologised to the court when I rebuked him for that but, tellingly, he did not see fit to offer any sort of apology to the pursuer.

2.6 There was a lot of evidence relating to the fate of the business after the date of separation. This served to throw light on the attitudes and motivations of the parties. The pursuer was shown to be someone whose primary aim was to ensure the survival of the business not only for the benefit of the parties but also for the benefit of their employees and customers. Hers was a compassionate and inclusive approach. The defender came out in a different light. His approach was shown to be selfish, exclusive and ultimately destructive. It appeared to me that his aim had been to harm the pursuer financially by destroying the business, regardless of the consequences to the employees, to customers and to himself. It seemed to me that he was prepared to suffer these consequences if it meant that he pulled the pursuer down with him.

2.7 The defender maintained that he was effectively forced to close the business down because of the interim interdict obtained by the pursuer prohibiting him, inter alia, from selling stock. I found the defender's evidence on this point to be incredible. He had announced his intention to close down the business and had removed the stock form the premises before the pursuer obtained the interdict. In the face of the interdict the defender had then returned the stock to the premises and had re-commenced trading. The inference that I drew from the evidence was that he had then realised that he could use the interdict as an excuse to close down the business, as had been his intention all along, and lay the blame for that at the pursuer's door. This, to me, was just another example of the defender's devious mind at work. The pursuer had given an assurance that the defender would not be considered to be in breach of interdict by selling stock in the normal course of trade. She had conveyed this both verbally to the defender and his staff and by text message to the defender. That represented a common sense and practical approach to the interpretation of the interdict. Any reasonable and sensible person in the defender's position would have accepted the pursuer's assurance if there had been a genuine desire to carry on the business. The defender did not accept the pursuer's assurance but instead sought to rely on a literal interpretation of the interdict. The defender's literal interpretation of the interdict may well have been correct but it was not an interpretation which accorded with common sense or that could have prevailed in the face of the pursuer's assurance.

2.8 The evidence relating to the matrimonial home after the date of separation also threw light on the attitude and motivation of the defender. I accepted the evidence of the pursuer and her sister that when the pursuer resumed occupation of the matrimonial home some time after the separation, that is after it had been occupied for some time by the defender, the house had been left in a damaged state by the defender. On a balance of probabilities I found that the defender had deliberately left the house in that state knowing that at the very least it would cause the pursuer considerable inconvenience. I also concluded on a balance of probabilities that the defender had jammed a screwdriver in the electrical fuse box. I found the defender's attempted rebuttal of that suggestion, by pointing to the fact that his son had been living with him in the house, to be unconvincing and disingenuous.

2.9 On the whole and on the view that I formed of the parties, on disputed matters I generally preferred the evidence of the pursuer and her witnesses to that of the defender.

3. The Evidence at the Proof Before me

3.1. The pursuer gave evidence on her own behalf. She called as witnesses the defender's trustee in sequestration, Bryce Findlay, her sister [] and her employee, [], who had also been an employee of the parties before their separation and of the defender after the separation. I found the trustee in sequestration to be wholly credible and reliable. The other witnesses were credible and also reliable in regard to matters of general circumstance. Understandably, they were unable to provide reliable evidence in regard to matters of detail such as the existence and value of matrimonial assets and liabilities.

3.2 The Defender gave evidence on his own behalf but called no other witness.

4. The Evidence for Divorce

4.1 Crave 1 for divorce was allowed to proceed as undefended by an interlocutor dated 26 May 2005. The remainder of the action was allowed to proceed as undefended by way of affidavit evidence by an interlocutor pronounced by Sheriff Scott on 9 January 2006. This interlocutor followed the two days of proof before him and the non-appearance of the defender for a continued diet of proof. However, on joint motion of the parties this interlocutor was recalled on 25 June 2009 on appeal, allowed to be lodged late, to the Sheriff Principal by the defender. The interlocutor of the Sheriff Principal did not disturb the interlocutor of 26 May 2005.

4.2 The pursuer has lodged affidavit evidence supporting the grounds of divorce together with a minute for decree of divorce. The affidavits do no more than confirm the view that I have been able to come to on the basis of the evidence led before me. Accordingly I am content that the pursuer has amply proved her case for divorce and I have thus granted it.

5. Parties' Submissions

5.1 Parties were agreed at the close of the proof that they should lodge written submissions and this was reflected in the interlocutor granted at the end of the last day of proof. The time for lodging submissions was prorogated on the pursuer's unopposed motion. Written submissions were lodged by both parties and each of them has had the opportunity to see the other's submissions before finalising their own submissions. Parties restricted their submissions to the question of financial provision. I trust that parties will not take it as disrespect that I choose not to rehearse their submissions in detail. They are in process, number 48 of process being the defender's submissions and number 49 of process being the pursuer's.

5.2 The pursuer's submissions were quite straightforward. She sought decree of divorce; payment to her of the funds consigned in court following upon sale of one of the defender's flats in Aberdeen; and a pension sharing order, whichfailing a capital sum. She produced a schedule detailing the matrimonial property and debts and concluded that fair sharing of the net value of the matrimonial assets would require a payment to her of £82,431. Her calculations were, of course, distorted by her reliance on "evidence" which had not been advanced at the proof and her disregard of certain elements of the joint minute of admissions number 46 of process - as alluded to in paragraph 1.3 of this note.

5.3 Although the defender, in his submissions, went into some detail on the evidence and on matters of principle, unhelpfully, he offered no assistance in regard to the calculation of the net value of matrimonial property or as to what payment , if any, would be due to either party in order to effect a fair sharing of that net value. He referred to a number of cases but, for the most part, did not trouble to direct me to any particular passages in these cases or to make any detailed submissions, as opposed to bald assertions, as to how the cases supported the points he sought to make. I have not thought it to be a productive use of my time to scour these cases to try to pinpoint authority for the defender's propositions. For that reason I do not specifically refer to them here. However, I have read the cases and I can say that I have not found any point of law or of principle therein to which violence is done by the conclusions that I have reached.

6. My Approach to the Award of Financial Provision and Resolution of the Main Areas of Dispute

6.1 A significant amount of matrimonial assets and liabilities is agreed in the joint minute number 46 of process. This joint minute was forthcoming on the first day of the proof only after encouragement from me. It is fortunate that the joint minute was eventually entered into. Otherwise, it would have been an exceptionally difficult task if not to ascertain what assets and liabilities existed as at the date of separation then to ascertain their net value. In addition to what is agreed in the joint minute there are admissions on record from which the existence and values of assets and liabilities can be taken. The transcript of evidence from 2005 also provides information on the value of the business.

6.2 Beyond what had been agreed between the parties the evidence at the proof before me relating to assets and liabilities and the values thereof was, in general terms, quite unsatisfactory and unreliable. In general but with one or two minor exceptions, the parties did not refer to documentary productions during evidence and for the most part contented themselves by offering unvouched opinion of value. I am referring here principally to articles of furniture, furnishings and household contents and moveable items in and about the matrimonial home and the croft. The comment also applies to the valuation of debts which the defender claimed to be in existence as at the date of separation. No doubt the approach adopted by the parties to these matters stems from the fact that they found it difficult to be more helpful and precise due to the passage of time and the consequent dimming of memory.

6.3 Both parties claimed to have settled matrimonial debts after the date of separation and both claimed that the other had retained assets without accounting for them. With a few exceptions which I mention elsewhere, neither party gave any satisfactory evidence of what was involved or of values. But I accept that both parties both retained assets and paid matrimonial debts. In addition there are certain insurance policies in name of the defender that the parties agree existed but for which no values have been agreed or established. I have taken the view that I have no option but to leave out of account in determining any award of financial provision anything in respect of which the value has not been ascertained.

6.4 I accepted the pursuer's evidence that although she had sold paintings to the value of £5,000, along with other unspecified assets of unspecified value, the proceeds of sale were generally used to reduce matrimonial debt. The effect of this is neutral as regards financial settlement between the parties and I have therefore left the paintings out of account in my calculations.

6.5 I also accepted the pursuer's evidence that she paid £250 per month for a year following the separation towards the debt on the parties' cabin cruiser. The inference from her evidence was that these payments were made from her own resources but she also gave evidence that she sold matrimonial assets of unspecified value to pay unspecified matrimonial debts. Accordingly, I cannot be sure what the source of funding was in the period between the date of separation and the date of her commencement of business. But I accept that from the date of commencement of business she had an income which would have enabled her to make these payments from her own resources. Accordingly I find her entitled to credit for monthly payments of £250 between August 2004 and January 2005. That would be five months at £250 which equals £1,250.

6.6 I accepted the pursuer's evidence that she paid a total of £9,000 to Clydesdale Bank and that this was used by them to reduce the parties' joint account and the defender's loan account. Her evidence on this point was that this was after she commenced trading and that the bank had insisted on these payments as a condition of allowing her trading account to remain open. I accept that these payments would have come from the pursuer's own resources funded by her business income. I have given the pursuer credit for these payments by treating her as having taken over matrimonial debts to that amount.

6.7 The Sun Alliance policy number [] in joint names of the parties had a value as at date of separation of £48,870 as recorded in the joint minute. I accepted the pursuer's evidence that the policy was surrendered in late 2007 when the value had risen to about £77,000. I also accepted her evidence that she had paid monthly into this policy from August 2004 to November 2007. There was no evidence as to any payments into this policy between the date of separation on 29 January 2004 and August 2004 but the defender did give evidence that, in general, during that period he was servicing the parties' debts. I am prepared to accept that he would have paid the premiums on this policy during that period. This is partly on the basis of the defender's own evidence and partly because the pursuer raised no issue about the premiums not having been paid during that period, as I am sure she would have done if that had been the case. Accordingly, between January 2004 and November 2007 the defender had paid 6 monthly premiums. The pursuer had paid 39 monthly premiums which I accept were from her own resources as they were paid following her commencement in business. That is a total of 45 monthly payments which equates to about £36,000 if the figure of about £800 given by the pursuer in evidence is correct. But the difference in value of the policy between the date of separation and the date of encashment is only £28,130, according to the pursuer's evidence. I assume that this was an investment policy and therefore it is unlikely that premiums of £36,000 over a number of years would have produced a return of only £28,130. In addition, the sum already invested in the policy at the date of separation would have continued to grow. Accordingly, if the pursuer's figure for the value of the policy at November 2007 is correct the parties must have contributed considerably less than £36,000 since the date of separation. The absolute limit of what they would have contributed would have been no more than the difference in value, namely £28,130 assuming no growth whatsoever. Doing the best I can and using a very broad brush I estimate that the total increase in value attributable to the contributions of the parties after the date of separation at £20,000. The proportion of that attributable to the pursuer for which there were no corresponding contributions by the defender works out at £14,666. Half of that figure, £7,333, went to the defender's trustee in sequestration. Accordingly, to that extent the defender gained an economic advantage and the pursuer suffered a corresponding economic disadvantage. I have reflected this in the table in finding in fact 40.

6.8 The defender would have gained an economic advantage and the pursuer would have suffered a corresponding economic disadvantage by virtue of the fact that the pursuer has carried virtually the whole burden of caring and providing for the children of the marriage since the date of separation. However, the evidence on this point as regards the amounts involved was basically non-existent. Again, taking a very broad brush I would put the pursuer's contributions in respect of the children from her own resources since her commencement in business in August 2004 at £40,000. That works out at between £4,000 and £5,000 per annum between then and now. It is, in my view, a modest amount. The advantage to the defender and the corresponding disadvantage to the pursuer would be one half of that figure. There was some faint evidence about the involvement of the child support agency and so it is possible that the defender might yet find himself liable to them for backdated support payments. On that basis, again doing the best I can, I would put the figure for advantage/disadvantage at what may be regarded as a token figure of £10,000.

6.9 When the parties separated, the defender continued to run the business as a sole trader to the exclusion of the pursuer. Accordingly, the defender acquired the business. It could be argued that the value of the business fell to be credited to the defender in the exercise of settling financial matters between the parties on divorce. Effectively and all else being equal, the defender would have been due to pay to the pursuer one half of the value of the business to effect a prima facie fair sharing of matrimonial property on divorce. The defender chose to abandon that business in August 2004. Had the pursuer chosen not to intervene, as would have been her right, the value of the business would have been lost entirely. Yet, the defender would still have been liable to pay to the pursuer a one half share of the value of the business as at the date of separation. However, the pursuer chose to intervene and commence trading from the premises occupied by the business using the stock and equipment which had been abandoned by the defender. In my view, by doing so she salvaged for her own benefit whatever value in the business remained. The question now is whether or not the pursuer must account to the defender for any part of the value of the business. The defender maintains that as the pursuer, in fact, came to acquire the business, or at least the goodwill of it, the value thereof as at the date of separation must be taken into account as having been taken by the pursuer. The pursuer maintains that the value of the business must now be left out of account completely in settling the division of matrimonial property between the parties on divorce. She maintains that that is because the matter is res iudicata, this having been litigated between the parties in the defender's action against her for count reckoning and payment. In my view, the value of the business should now be ignored but not for the reason advanced by the pursuer. What is being litigated between the parties now is how the net value of matrimonial property as at the date of separation, which included the value of the business, should now be shared between the parties. That is quite a different matter from the one which would have been litigated between the parties in the action of count reckoning and payment. What would have been litigated in that action was what accounting, if any, was due by the pursuer to the defender as a result of the pursuer having taken over the business as it existed at the date of its abandonment by the defender. The business would have included assets, such as stock, which would not have been matrimonial assets. To that extent, the subject matter of the litigation would have been different. The resolution of the action of count reckoning and payment would have involved the application of the laws of contract and partnership and, perhaps, others such as unjustified enrichment. Accordingly, I do not accept the pursuer's contention that the matter is res iudicata. But, in reality, what happened was that the defender, as at the date of separation, took the business for himself and he squandered and abandoned it. The pursuer by her voluntary intervention salvaged some of the value of the business for her own benefit. I do not see why she should have to compensate the defender for that which he squandered and abandoned. On the other hand, I do not see why the defender should now be penalised by being found liable to the pursuer for something that she has, in fact, not lost. There was no evidence as to the net value of the business effectively taken over by the pursuer. But there were two sources of evidence relating to the value of the goodwill of that business. The first was the evidence of Wilson Galloway before Sheriff Scott on 20 September 2005. Mr Galloway suggested that the value of the goodwill was £170,000 based on the draft accounts prepared for the pursuer's business for the period from 24 August 2004 to 31 March 2005. The second was in a letter from Bon Accord Accountancy dated 13 September 2005 (5/6/2 of process) which was put to Mr Galloway in cross examination. This suggested that the value of the goodwill based on the draft accounts was £85,000. I prefer Mr Galloway's evidence on this point. His method of valuation of this goodwill, namely two times the annual profit, is consistent with his method of valuation of the goodwill of the business as at the relevant date. The valuation by Bon Accord Accountancy appears to assume that the business being valued is a new business. Whilst that may be technically correct it ignores the fact that the business could be regarded as being a continuation of the previous business, conducted from the same premises by the same staff with the same customer base. Bearing these factors in mind I have come to the view that the value of the goodwill as at 31 March 2005 is a good indicator of its value as at 24 August 2004 and on that basis I take the value of the goodwill as at 24 August 2004 as being approximately £170,000. That is roughly half the value of the goodwill as at the relevant date. It is not possible to do a like for like comparison of the net value of the business as between the relevant date and 24 August 2004. This is because there is no reliable evidence of the other components in the valuation, such as stock and creditors, as at the later date. But adopting a broad brush approach it seems to me that the fairest way to deal with the business is to treat it as if the parties themselves have effected a fair division thereof. The defender chose to squander and abandon his share of it and the pursuer salvaged a significant share of it. If it be the case, which cannot be known, that the pursuer, in fact, salvaged more than half the value of the business as at the date of separation then so be it. But, on the evidence of the pursuer that she had to take over debts to suppliers incurred by the defender after the date of separation it is at least as likely that the value salvaged by her was less that one half of the value as at the date of separation.

6.10 There was controversy over the debt due to []. This was a debt arising from a fraud perpetrated by the defender involving false [] claims. The pursuer was absolved from any claim in respect of this debt, presumably on the ground that she was not party to the fraud. The defender is solely liable for the debt and on this basis the pursuer claimed that it should be left out of account in the settlement of financial matters between the parties. I do not agree. The evidence, such as it was, was that the moneys fraudulently claimed from the [] were paid to the partnership between the parties. It follows that the net value of the matrimonial assets must have been enhanced by the amount of the moneys received. The pursuer has benefited from the fraud although she was not responsible for it. Accordingly, it is only right that the debt be taken into account and I have done so. The pursuer maintained that the debt amounted to £12,400 at the date of separation. However, the evidence generally was that the fraud was very substantial and on this particular point I am prepared to accept the defender's evidence that the amount currently due to the [] but relating to the period before the date of separation amounts to £42,400. That is the figure that I have employed in my calculations.

6.11 On the first day of the poof I allowed to be received the pursuer's minute of amendment number 45 of process introducing, inter alia, a crave for a pension sharing order. In fairness to the defender I allowed him to amend to introduce a crave in the same terms. I allowed all of this on the understanding that it would increase the options open to me for effecting a fair sharing of the net value of the matrimonial assets, in whose ever favour such an award might be made. Neither party sought a warrant to serve the amended pleadings on the relevant pension providers in terms of rule 33.7(1)(m) of the Ordinary Cause Rules. Accordingly, no service has been made on those pension providers and they have had no opportunity to enter the proceedings by minute as contemplated by Form F12B of the rules. Neither party directed me to the need for service. Had I appreciated the need for service at the time of allowing amendment of the proceedings I would have been bound to allow the usual period of notice upon service. Inevitably, this would have required a discharge of the proof. I would not have allowed amendment in those circumstances. Accordingly, I am of the view that it would be inappropriate for me to consider making a pension sharing order. On the view that I have formed as regards the entitlement of the pursuer to an order for financial provision this affects only the pursuer. In any event, even if I had felt able to consider a pension sharing order in favour of the pursuer I would not have made an order having regard to the relative resources of the parties.

7. The Award of Financial Provision

7.1 It will be seen from the table at finding in fact 40 that taking account of all of the foregoing the pursuer would be due to receive a sum of £42,578.73 in order to effect an equal division of the net value of matrimonial assets, in so far as the values can be ascertained. If she were to receive the funds (£17,509.32) which are currently consigned with the Sheriff Clerk deriving from the sale of the flat in Aberdeen, together with interest accrued thereon, there would be a shortfall of approximately £25,069.41.

7.2 I have come to the view that I should not make an award against the defender for any part of the shortfall because it would not be reasonable to do so having regard to the relative resources of the parties as set out in findings in fact 42 and 43. The pursuer's resources include her interest in her parents' house. Although this could be regarded as matrimonial property the defender, to his credit, acknowledged during his evidence that he did not seek to bring it into account for the purposes of a financial settlement between the parties. He declared that his only purpose in highlighting this asset was to demonstrate the extent of the pursuer's resources. In the result, I have made an order the effect of which is that the consigned sum should be paid over to the pursuer in settlement of her claim to financial provision

8. Expenses

8.1 Both parties have sought an award of expenses. It is clear to me that the defender has created various difficulties and delays throughout the whole case. The proof which I heard over 6 days need not have gone ahead if the defender had accepted the pursuer's offer, intimated during the pre-proof hearing before me on 8 January 2013, to settle on the basis of no payment due to or by either party. Presumably, this would have involved the consigned sums being divided equally between the parties. The pursuer has been successful in obtaining an award substantially more favourable to her than that. Conversely, the defender has failed to obtain an award and, in particular, he has been unsuccessful in having the value of the business brought into account. In the whole circumstances I am of the view that the pursuer is entitled to an award of expenses and I have provided accordingly.

9. Final Procedure

9.1 So far as the pursuer is concerned matters cannot be finalised until she has provided a certificate from Her Majesty's Customs and Excise in terms of Ordinary Cause rule 30.2(1) that all taxes or duties payable by her have been paid or satisfied. However, as between the parties my judgment is a final judgement. I have sought to reflect all of this in my interlocutor.