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You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> Woodhouse v. Mooney [2006] ScotSC 42 (21 April 2006) URL: http://www.bailii.org/scot/cases/ScotSC/2006/42.html Cite as: [2006] ScotSC 42 |
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F333/04 |
JUDGEMENT OF SHERIFF WILLIAM
SEITH STANNERS in the cause ROBERT BOAM WOODHOUSE Pursuer against DEBORAH NOYAN MOONEY or WOODHOUSE Defender |
The Sheriff, having resumed consideration of the cause, Finds the following facts admitted or proved:
FINDINGS IN FACT
1.
The parties were married at Newton Mearns on
2. There are 4 children of the marriage, namely Mark Boam Woodhouse, born 26 October 1988, Grant Nicholas Woodhouse, born 26 April 1993, Stewart James Woodhouse, born 19 September 1995 and Rachel NoyonWoodhouse, born 3 January 1997. All of the children are in full time education and reside with the Defender at the former matrimonial home. Only the 3 youngest children are now under the age of 16 years.
3.
The parties separated on
4.
The relevant date for the purpose of Section 10(3) of
the Family Law (
5. At the relevant date there was matrimonial property in the Pursuer's name as follows:
(i)
the matrimonial home at
(ii) Scottish Provident Endowment Policy number 206969301, worth £13944.00;
(iii)
Heritable property at 73a
(iv) Heritable property at 12 Townend, Kilmaurs, worth £42000.00;
(v)
Heritable property at
(vi)
Heritable Property at 9a
(vii)
Heritable Property at
(viii) An account with Ameritrade Brokers (formerly Aufhauser), with a balance of $643.61-£380.00;
(ix) Sum at credit at Clydesdale Bank PLC, account number 10582085 of £1591.50;
(x) Sum at credit at Clydesdale Bank, account number 20582085 of £80.00;
(xi) Sum at credit at HSBC, bank account number 91083163 of £127.05;
(xii) Sum at credit of Saudi American, bank account number 72863 of $162355.00-£95800.00;
(xiii) Cash deposit (for car) £10000.00;
(xiv) Share holdings with Aviva and Cable & Wireless, worth £300.00;
(xv) Pension policy with Prudential (previously Scottish Amicable, previously M&G), number M105B246, with a cash equivalent transfer value of £1129.00;
6. At the relevant date there was matrimonial property in the ownership of the Defender as follows:
(i)
heritable property at
(ii)
heritable property at 40a
(iii)
heritable property at
(iv) Abbey National TESSA account number 56790710, worth £5169.15;
7. At the relevant date there was matrimonial property in the joint ownership of parties as follows:
(i) sums at credit at Clydesdale Bank, account number 343093 of £1627.25;
(ii) sums at credit at Clydesdale Bank, account number 343085 of £2177.80;
(iii) the furniture and contents of the matrimonial home.
8. Prior to the relevant date the parties opened various accounts for the benefit of the children as follows:
(i) Abbey National, account number R15862709WOO in the name of the Defender as Trustee for Mark Boam Woodhouse, which had a balance of £16675.41;
(ii) Abbey National, account number X12145240WOO in the name of the Defender as Trustee for Mark Boam Woodhouse which had a balance of £133.15;
(iii) Abbey National, account number X11648464WOO in the name of the Defender as Trustee for Rachel Noyon Woodhouse, with a balance of £270.33;
(iv) Abbey National, account number X10637100W00 in the names of both parties as trustees for Stewart James Woodhouse with a balance of £300.00;
(v) Abbey National, Bond number 84729 in the name of the Defender as Trustee for Grant Nicholas Woodhouse, with a balance of £13312.25;
(vi) Abbey National, Bond number 847390 in the name of the Defender as Trustee for Mark Boam Woodhouse, with a balance of £3245.86.
9. Immediately following the parties separation, the Defender withdraw all sums at credit in each of the Clydesdale Bank accounts, with the exception of account number 20582085. In addition, she withdrew a total of £22000.00 from accounts in the children's names to fund the purchase of a motor vehicle.
10. At the relevant date, the Pursuers had a credit card debt in the sum of £2497.55 due to HSBC, Master Card number 5434 6030 2765 7689
11.
Between
12. The Defender has retained her investment properties referred to at paragraph 6 (i), (ii) and (iii). Said properties yield a rental income to the Defender. The current values of the properties are as follows:
(i)
(ii)
40a
(iii)
13
The Pursuer owned heritable property at
14
With exception of a period in 1988 and 1989, the
Pursuer has worked abroad, mainly in the
15.
On
16.
The current value of the former matrimonial home is
£550000.00. The terms of the report and
valuation by CKD Galbraith, dated
17. For the purposes of proof in the present action, copy documents may be treated as principals.
18.
The property at
19.
There are special circumstances to exclude the proceeds
of sale of the property at
20. There are no grounds, in terms of special circumstances, to exclude the difference between £180155.66, and the sum of £213000.00.
21.
The Pursuer invested the proceeds of the sale of the
said
22.
The property at
23. The Pursuer has no other assets which he has not disclosed to the Defender, nor the Court.
24.
Between October and December 2004, after the Pursuer's
dismissal from his own employment in August 2004, the Pursuer was engaged in
assisting colleagues in a business plan in
25. The Pursuer, after his recovery from his heart attack, has sought employment. He has sought employment in his original field of working with a computer software programme called "SAP". He has not been successful in gaining employment.
26.
Whilst the Pursuer was employed in the
27.
He has researched the possibility of employment in the
28. He has not worked since he suffered his heart attack and has not generated any income, excepting interest on his capital accounts, held in banks. He has not hidden, nor has he not disclosed, any sources of income, either to the Defender or the Court.
29.
On
30.
The Defender and the children of the marriage,
presently live in the former matrimonial home at Braeheads,
31. Since the date of separation the Defender has only looked one other property of a similar type to the matrimonial home. To purchase that would have taken between £320000.00 and £340000.00. The Defender has not looked at other properties which she might be able to purchase, should she require to purchase a smaller property to accommodate herself and the children.
32. Since the date of separation the Pursuer has continued to pay the mortgage of the matrimonial home and also has remitted the sum of £450.00 per month to the Defender. The matrimonial home has deteriorated.
33. The Defender hopes to obtain employment as a foster carer. The matrimonial home has been approved by the relevant local authority for that purpose. The Defender has not commenced employment as a foster carer and her earnings from that employment are not certain.
34. The Defender, due to indebtedness, and lack of remunerative employment, is not in a position to maintain the matrimonial home and to continue to live there with the children of the marriage. It would be best that the matrimonial home was sold, a capital payment be made to the Defender, by the Pursuer, and thereafter for the Defender to buy a home, on a smaller scale, suitable for herself and the children.
35. From the flatted properties in her name, the Defender generates annual income in or around £12600.00, which after deduction of necessary costs of running said properties, would be in the region of £12000.00 per annum.
36. The Defender has obtained, in principle, indication that she may be able to borrow £66000.00, which could be used to assist her in purchasing a suitable home for herself and the children.
37.
The 3 younger children, Grant, Stewart and Rachel, all
attend
38. The Pursuer, when he worked abroad, saw the children only when he had holidays of approximately 7-8 weeks per year. After the parties separated, he had infrequent contact with the children due in part to the reluctance of the Defender to such contact, but also due to concerns the Defender reasonably had about the Pursuer's engagement with the children, and especially the Pursuer's insight into a hyper activity condition from which the child Stewart suffers from, which requires a special diet.
39.
The Pursuer does wish to have contact with the
children. He has, under order of the
Court, had telephone contact and subsequent periods of personal contact with
them in
40. The Pursuer presently pays £450.00 per month to the Defender. The Defender's outgoings exceed her income by the figure of £240.00 or thereby per month. The Defender, who has not worked, and is not immediately likely to obtain remunerative employment as a foster carer, will require a period of readjustment after divorce. It is reasonable that the Pursuer be required to pay a periodical allowance for a period of 6 months after the decree of divorce.
FINDS IN FACT AND LAW
1. That the marriage between the parties has broken down irretrievably. There is no prospect of a reconciliation. The parties have lived apart for 2 years. The Defender, by her oath, consents to decree of divorce, on that basis.
2. Contact by the Pursuer, with the children Grant, Stewart and Rachel, would be in their best interest. That the Defender is now willing to facilitate contact between the Pursuer and the children. It is better that no order is made than that an order is made as regards contact. The arrangements for future contact between the Pursuer and the children, are best regulated by the parties themselves.
3. That in order to make provision for a division of matrimonial property on divorce, there are no special circumstances to justify transferring the matrimonial home from the Pursuer to the Defender.
4. That the best way to order the division of matrimonial property on divorce would be to ordain the Pursuer to make a capital payment to the Defender.
Therefore Finds that the marriage between the parties has broken down irretrievably, there is no prospect of reconciliation, the parties having lived apart for a period of 2 years, the Defender consenting to divorce, therefore divorces the Pursuers from the Defender; Ordains the Pursuer to make a capital payment to the Defender is the sum of THREE HUNDRED AND SIXTEEN THOUSAND FIVE HUNDRED AND EIGHTY POUNDS (£316580.00) STERLING with interest from the date of decree at the rate of 8% per annum until payment; Ordains the Pursuer to pay the school fees of Belmont House School, Newton Mearns, Glasgow in relation to Grant Nicholas Woodhouse, Stewart James Woodhouse and Rachel Noyon Woodhouse, including all tuition fees and all additional fees in respect of extra-curricula activities, until the term ending in Summer 2006; Ordains the Pursuer to pay to the Defender, as regards the child Mark Boam Woodhouse, the sum equivalent to that which would have been paid to Belmount House School, for the said Mark Woodhouse, and that until the end of the summer term 2006 (to assist in the said child's schooling at Glenalmond School); as regards contact, Makes No Order; Ordains the Pursuer to pay to the Defender the sum of FOUR HUNDRED AND FIFTY POUNDS (£450.00) STERLING per month, in advance, as periodical allowance, for a period of 6 months; Capitalises that in the sum of TWO THOUSAND AND SEVEN HUNDRED POUNDS (£2700.00) STERLING with interest at the rate of 8% per annum from the date of decree until payment; Accordingly, Sustains the Pursuer's first plea in law; Repels the Pursuer's second plea in law; Repels the Pursuer's third plea in law as no longer necessary, or insisted upon; Sustains the Pursuer's fourth plea in law, in part; Sustains the Pursuer's fifth plea in law; Sustains the Defender's first plea in law; Sustains the Defender's second plea in law in part as regards the payment by the Pursuer to Defender of a capital sum; Repels the Defender's third plea in law; Sustains, in part, the Defender's fourth plea in law; Repels the Defender's fifth plea in law; Sustains in part the Pursuer's sixth plea in law; Appoints parties to be heard on the question of expenses on Wednesday 17 May 2006 at 10.00 am; Reserving to pronounce further.
This is an action for Divorce, originally on the basis that the marriage had broken down irretrievably due to the alleged adultery of the Defender, but now as amended, on the basis that the parties have lived apart for a period in excess of 2 years and the Defender consents to Decree of Divorce on that basis, given that the marriage has broken down and there is no prospect of reconciliation. Each of the parties, as discussed below, had financial craves which required to be determined on the Court granting Decree of Divorce. There is also a crave by the Pursuer for contact with the 3 younger children, of the marriage, under 16 years of age. The question of the expenses of the cause, I have, as parties invited me so to do, reserved for a hearing which I have appointed for that purpose. The Pursuer was represented by Mrs McLachlan, Solicitor and the Defender by Mr Hayhow, Counsel.
I heard evidence
on the
I heard parties
on their submissions on
It is, however, important to state that given the Court's obligation to obtain the views of the children where there is an outstanding crave for contact, I arranged, as I report more fully below, to interview the 3 younger children of the marriage and their older brother Mark, who is now over 16 years of age, on 11 July and appointed that date as a Child Welfare Hearing. Having dealt with the issue of contact at that time, I appointed a further Child Welfare Hearing for 15 August. I again report more fully on these hearings under the section "Contact" below.
In writing this Judgement, I have not, as is sometimes the case, simply summarised the submissions of parties representatives, but rather have felt it appropriate to identify the essential issues in dispute between the parties in this cause and to deal with parties submissions under a number of headings. However, given the inter-relationship between certain of these matters, there may well be an element of repetition of the submissions, but it seems to me that by adopting this methodology, the issues are not only more clearly identified, but my reasoning in reaching the conclusions which I made is, I trust, clearer.
BASIS ON WHICH PARTIES OUGHT TO BE
DIVORCED
As I have stated, the Pursuer's action for Divorce was originally on the grounds of the Defender's adultery. Evidence on this allegation was led from the Pursuer, the private investigator and Mrs Johnstone and to some limited extent from the Pursuer's other witnesses. However, at the conclusion of all the evidence, given that the Defender, although she had denied adultery, accepted on oath, that the marriage had broken down irretrievably, that there was no prospect of reconciliation and that she consented to Divorce, the Pursuer has amended the basis of the ground on which Divorce is now sought. I have therefore not been called upon, nor of course did I hear any submissions on the evidence, as to the Defender's alleged adultery, to reach any concluded view on that matter and, of course, I have not done so in my Findings In Fact. However, I am satisfied by both the evidence of the Pursuer, on oath, and the Defender, on oath, that the marriage has broken down irretrievably, that they have lived apart for a period in excess of 2 years, that there is no prospect of a reconciliation and that the Defender consents to Divorce. Parties invited me to grant Decree of Divorce on that basis and I have done so.
FINANCIAL ISSUES
Parties had
entered into a joint minute of admissions (number 26 of process) which sets out
the matters agreed as to the financial affairs of the parties as at the
relevant date. Further, in their
submissions, parties were agreed that the figures listed in 5/42 of process
were accurate and those figures indeed form the basis of their respective
submissions on the financial matters.
Mrs McLachlan had taken some time in her submissions to bring to the
attention of the Court the statutory provisions in the Family Law (
I now turn to the issues which I have identified as being in dispute between parties in this cause.
WHETHER THE PURUSER HAS ADDITIONAL CAPITAL AND INCOME RESOURCES WHICH HE HAS NOT DISCLOSED
Mrs McLachlan
drew to the Court's attention, Defender's averment that he has additional
assets, but submitted that the Defender had not proved this, nor had the
Defender set out in Record, nor established in her evidence that this was the
case, with the exception of a property at 13 Oakly Court, Barnet. This property was sold in August 2004. This property was clearly the property of the
late father of the Pursuer, had been inherited by the Pursuer's mother and not
by the Defender. It was not, as the
Defender claimed, the property of the Pursuer.
Mrs McLachlan pointed out that the Pursuer had granted a power of
attorney to the Defender whilst he had been working abroad as regards the
Defender's financial affairs in the
He had, of course, since the Proof in June, purchased a new property in August 2005. However, importantly, the source of funds was his previously held holdings in offshore funds and he had taken out a substantial mortgage, which he hoped to reduce on obtaining a financial settlement, hopefully on the sale of the matrimonial home, which was in his name. Mrs McLachlan submitted that there was no evidence that he had either additional capital, had any sources of hidden income, nor any expectation of substantial earnings, should he in fact be fortunate to find employment.
Mr Hayhow, in his submissions on this aspect, as indeed on the other matters arising in this case regarding financial settlement, submitted that the view that the Court took on the Pursuer's credibility, was crucial.
Mr Hayhow drew
to the Court's attention the admission, by the Pursuer in his evidence, that in
compiling his curriculum vitae, to assist his search for employment, he had
deliberately omitted his age, which should be regarded by the Court, as showing
that the Pursuer had a propensity for deceit.
Moreover, that by pretending to be his late father, to accomplish the
purchase of an extended lease to increase the value of the property in Oakly
Court, Barnet, on its resale, he had clearly been deceitful. The Court could also have regard to his
evidence as to why he had been in the
In summary, Mr Hayhow submitted that all of these factors pointed to a man who was hiding his true assets and his true expectations of income.
I had the advantage of Mrs McLachlan and Counsel's submissions and, importantly, the opportunity to consider the evidence in light of those submissions. Importantly, too, I have had the advantage of hearing and seeing the witnesses, especially the Pursuer and the Defender, being examined on oath.
It is a fair
impression of the Pursuer, that sometimes in his evidence he gave brief
answers, both to his solicitor and indeed to Counsel for the Defender. As an example, he often only used the word
"correct" in an answer to a question put to him. However, in reviewing his evidence and my
notes on same, I have been drawn to the view that the Pursuer has not sought to
mislead the Court on his assets, as to his time in Bahrain between his
dismissal in August 2004 and the event of his heart attack in December 2004,
nor do I find that he has sought to mislead the Court as to his likely future
income. I have accepted his evidence as
both credible and reliable, that having lost his job in August 2004, he was
hopeful in finding new employment in the
The matter of
the Saudi bank account, referred to in Mrs McLachlan's submissions, was not
made an issue by Counsel in his submissions.
In any event, I am satisfied from the Pursuer's evidence, under
reference to the productions to which I have referred, that this was not a
further bank account in
As regards the
property at Oakly Court, Barnet, I accepted the Pursuer's evidence and that of
his mother and sister, that the property had indeed belonged to the late Mr
Woodhouse. I accepted their evidence
that after his death Mrs Woodhouse had not completed title to that property in
her own name. An opportunity had arisen,
due to the change in the law in
The Defender's recollection that the Pursuer had said to her that he was going to sell his half share, again I could not accept as reliable, set against the evidence of not only the Pursuer, his mother and sister, which in my view was both credible, consistent and therefore reliable. It is significant and bears on the Defender's reliability that this alleged conversation was never put to the Pursuer in cross examination.
As regards the
Pursuer's purchase of his new property in
With respect to the Defender's Counsel, much of his submissions as regards the view that I ought to take of the Pursuer, as regards his supposed assets and income, were based on supposition. I can well understand that Counsel might take this line in seeking to advance his client's position. However, I am required to proceed on the evidence which I can find to be both credible and reliable and in these circumstances, I have been drawn to the view that the Pursuer does not have hidden assets, nor hidden income, nor underestimated in some deliberate sense, his expectations of income for the future.
WHETHER THERE ARE SPECIAL CIRCUMSTANCES TO EXCLUDE ITEMS OF THE PURSUER'S PROPERTY FROM THE TOTAL OF THE NET MATRIMONIAL PROPERTY
Mrs McLachlan submitted that in this case there were
special circumstances and that those related to an argument in terms of "source
of funds" (Section 10(6)(b) of the Act).
This source of funds argument related to 4 properties owned by the
Pursuer at the relevant date. These were
12 Townhead, Kilmaurs (£42000.00),
Mrs McLachlan
referred to the Pursuer's evidence that the Pursuer had purchased the property
at
She submitted the Milton Avenue property could not be said to have been imported into family finances as the properties purchased from the proceeds of that sale and subsequently banked, were acquired only some few months prior to the relevant date and the proceeds of the Milton Avenue property had not been applied to or absorbed into, family finances.
Mrs McLachlan
referred to decisions to which the Court ought to have regard. In Cunningham v Cunningham (a decision of
In these circumstances, her principal submission was that I should exclude that sum of £213000.00 from the matrimonial property in terms of Section 10(6)(b). In December 2005, having heard Counsel's submissions for the Defender, Mrs McLachlan then submitted that the interest earned on the proceeds of the Milton Avenue property was not significant to family finances in the context of the Pursuer then earning, prior to the relevant date, in excess of £100000.00 per annum. She did, in developing a secondary argument, then indicate that the Court might take the view that to the extent that the £169516.34 had grown to £213000.00 by the relevant date, that the Court might take the view that the difference of approximately £43483.66 might be said to have been absorbed into matrimonial property, but her principal submission that the full sum ought to be excluded.
Counsel for the Defender stressed that the word "may" in Section 10(6) was significant. In this case it was not simply the case of shares owned by one party prior to marriage being switched into other shares from time to time on the advice of a broker, which might not bring such property into the scope of matrimonial property. Nor was this case indicative of a short marriage, where such pre-marital property ought to be excluded as only being imported into the marriage shortly prior to the parties separation. In his submission, the case of Whitlett v Whitlett could be distinguished on his facts, as there the Defender had shares in a company for a significant number of years and there was a short marriage. In Counsel's submission, to exclude the present 4 flats ignored that they were converted into cash during the marriage, were transferred into a bank account and acquired interest over 3 years of the marriage, and then thereafter were changed into heritable property, that latter change was to advance a joint matrimonial purpose which was the acquisition of a portfolio of properties. Moreover it could be seen that the Defender, with funds from the Pursuer, had acquired a number of properties too. In these circumstances it could be said that there was a joint enterprise to build a portfolio of properties. Further, had not the Pursuer had the Defender to look after his children, Counsel posed the question whether the Pursuer would have been able to sit on funds of £180000.00 or thereby and generate interest for 3 years. The purpose, too, had to be examined. In this marriage, it might be said, the Pursuer generated income and the Defender was looking after the children and that that division of effort contributed equally to them being able to embark on a joint enterprise. Counsel reminded the Court of the Defender's evidence that she had, in a practical sense, bought the properties for the Pursuer and had furnished them and managed them - this again pointed to a joint enterprise. To exclude these properties from the total matrimonial property, to be divided, would be rare, in Counsel's experience and would not fit with Lord President Hope's dicta in Little v Little, 1990, SLT 785, that the object of the Court was to obtain a fair and practical result that was conform to common sense.
By Section 10(1) of the Act, the Court is required : -
"In applying the principle set out in Section 9(1)(a) of this Act, [that the net value of the matrimonial property should be shared fairly between the parties in the marriage], the net value of the matrimonial property should be taken to be shared fairly between the parties to the marriage, where it is shared equally, or in such other proportions are as justified by special circumstances".
The Act further requires per Section 10(6)(b) : -
""In Subsection (1) above, special circumstances without prejudice to the generality of the words may include - .......
(b) the source of the funds or assets used to acquire any of the matrimonial property, when those funds or assets were not derived from the income or efforts of the parties during the marriage".
Authoritive
guidance to lower Courts as to how to treat the words "special circumstances"
can be found in the speeches of Lord Jauncey and Lord Clyde in the case of Jacques v Jacques, 1997, SC(HL) 20, (1997)
SLT 459.
At page 462, Lord Clyde said : -
"The words "special circumstances" do not have any technical meaning, but refer to any circumstances which are special to the case, Section 10(6), gives illustrations of what may be included ...... . Moreover, in stating that the words "may" include the stated illustrations, it is indicating that there is no necessary conclusion that any of the illustrations must require some unequal sharing ...... As a matter of construction, it is sufficient to understand that in the ordinary course an equal division will be fair, but where there are special circumstances, some unequal division may be justified"".
At page 461, Lord Jauncey said : -
"The provisions of Section 10(6) give guidance to the Court at first instance but do not fetter its discretion in applying the principle set out in Section 9(1)(a)".
Against that statutory, and authoritive background, I proceeded in deciding this issue in the particular circumstances arising in this case.
It is not
disputed that the property at
However, there is force in Counsel's contention that the funds thereafter were applied to buy 4 properties at roughly the same time that the Pursuer provided funds to the Defender to buy 3 properties. I therefore accept the Defender's evidence as more persuasive that the purchase of properties was a joint enterprise by both the Defender and Pursuer and indeed I accept her evidence that she had played a role in selecting the properties, their outfitting and their management. It also seems to me that the Pursuer's argument that the properties were bought relatively shortly prior to separation in this case is not significant. The plan was, and would I am satisfied remained, that the properties would be a portfolio of properties for the effective use of the parties in the future. I am not, however, persuaded that the Defender's broader argument as regards the Defender being able to gain on the £180000.00 because the Defender was looking after the children has merit. The interest was earned solely on the sum deposited - there was no joint enterprise, and the growth of the funds, as I have said, did not affect the family finances, nor was it added to by the Defender looking after the children. The interest was earned as a natural consequence of its investment, alone.
There is, however force, too, in Counsel's reference to the dicta of the Lord President in Little. I require to make a judgement, which in all the circumstances is fair and conforms to common sense. In this case, I have come to the view that the rise in value of the sum, by the purchase of the 4 properties, ought not to be excluded and that because of the input by the Defender into the joint enterprise to build up a portfolio of properties.
However, whilst Mrs McLachlan at least acknowledged the possibility that the Court might have regard to the difference between the £180000.00 and the final sum of £213000.00 I do not think it would be in line with the earlier decisions I have referred to above, and which I find persuasive, to fully take that difference into account. The principle seems to me to be that the amounts to be excluded are those that cannot be said to derive from the efforts of the parties jointly or in some proportion during the marriage. It seems to me that Mrs McLachlan position is not giving full regard to the principle arising from those cases and nor would it be, to repeat Counsel's submission, fair to the Pursuer to regard the interest element as part of that joint enterprise.
In light of that, I have decided it would be a proper exercise of the Court's discretion to exclude the sum of £180115.66 from the matrimonial fund to be divided, but to hold that a sum thereafter of £32884.34 should not be, representing the increase in value of the sum in the bank of £180115.66 and the final value of the flatted properties.
In these circumstances, the Pursuer's submission in my view as regards special circumstances in terms of Section 10(6)(b), exceeds in the larger part of the sum but not as regards the increase in value in the amount that I have identified.
WHETHER IT WOULD BE AN APPROPRIATE ORDER TO TRANSFER THE MATRIMONIAL HOME TO THE DEFENDER
The Defender's submission was that there was "special circumstances" in terms of Section 10(6) and Counsel accepted that such an order would mean that the Defender would receive more than 50% of the net matrimonial property. It is important, of course, to recognise that Counsel's submission was made against his particular submissions, that "special circumstances" did not apply to exclude certain of the properties owned by the Pursuer at the relevant date, which I have written on above.
The reasoning why such an order would be justified, Counsel submitted, was that the sale of the house and the consequent need for the children to move to a new home, would be disruptive. They would be moving from a home they had know all their lives. This would be especially disruptive, if too, the children needed to move from their private schools. It was submitted that Rachel, having dyslexia, and Grant having, broadly hyper activity problems, would be particularly affected. It was also submitted to be important to recognise that if the children moved they would not be able to take their family animals with them. Further, the Defender had a plan to be a foster carer and in that regard the present matrimonial home had been found suitable by the relevant local authority. The Defender, it is submitted, had seen only one house in the local area of similar standard since the time of the separation of the parties.
Mindful of the Lord Ordinary's reasoning in the case of Adams v Adams, 1997, SLT page 149, that it may be thought to be unrealistic to transfer the matrimonial home where the wife would require to live on a stringent budget, which not be in the children's best interests, Counsel submitted that the Defender in this case, could afford to finance the house and its upkeep. Counsel further submitted that in following the case of Little the Court should be mindful of arising at a common sense judgement which would not be met if the Pursuer was to remain in a house in England, worth £550000.00, which less mortgage outstanding amounted to a sum of some £340000.00 or thereby where he would be living on his own. This was to be set against a position whereby the Defender would be expected, on one calculation by the Pursuer's agent, to buy a house with £286000.00. This was based on the Pursuer's general submissions as to how the Court ought to divide the matrimonial property, which provided for, on Pursuer's submission, a capital payment of £200000.00 to equalise the parties assets - assuming that his pre-marital property was excluded - to which was to be added £86000.00 or thereby in recognition by the Pursuer of an argument which could be made in terms of Section 9(1)(c) - the economic burden of caring for the children.
Counsel did, of course, recognise that in line with the principle stated authoritatively by the House of Lords in Wallis v Wallis, 1993, SLT 1348, that the Court could not take into account any value other than the value of the house at the relevant date (therefore not any subsequent increase in value).
Counsel's second argument was that the Defender was entitled to have the property transfer order made, leading to a division of more than 50% in her favour, because of the application of Section 9(1)(b), - the economic disadvantage she had suffered - and Section 9(1)(c), the economic burden of caring for the children after the Divorce. In applying these principles, the Court ought to make a property transfer order.
As regards Section 9(1)(b), Counsel acknowledged that the Court would have to have regard to Section 11(2), which provides that the Court shall have regard to the extent of the economic advantages or disadvantages sustained by either party, have been balanced by the economic advantages or disadvantages sustained by the other party and any resulting imbalance will be corrected by a sharing of the value of the matrimonial property or otherwise.
Counsel submitted that the economic disadvantages suffered by the Defender was apparent. She had given up a career to look after the children, whilst the Pursuer had, throughout the marriage, generated significant income. He had, it was submitted, been able to concentrate on his career because the Defender had looked after the children. Moreover, as regards capital by the relevant date, under reference to 5/42 of process, this showed that the Pursuer had capital, not excluding any matters, on his submission, in terms of Section 10(6), of £762000.00, whilst the Defender had £142000.00, which evidenced, it was submitted, a substantial deficit. In these circumstances, a greater than 50% split would be justified.
As regards Section 9(1)(c), the Defender's future earning capacity would be restricted by looking after the children, both as regards the type of work she could obtain and the hours she might be able to work.
Returning to the question of whether the Defender could sustain the upkeep of the present matrimonial home, Counsel referred to the Defender's prospects of obtaining employment as a foster carer. Moreover, she had obtained an estimate that she could borrow a sum of £66000.00. If times became straightened, she had the option of selling one of her flatted properties to meet any problem. Indeed, it might also be said, that a transfer of the matrimonial home to the Defender would obviate the necessity of the Pursuer finding money to make a capital payment to her.
Mrs McLachlan
submitted that the Court had to have regard to the words "special
circumstances". The emphasis had to be
on the word "special", in these circumstances it could not be said to be out of
the ordinary in a Divorce case that families have to "downsize", having regard
to the financial realities that Divorce, and a division of matrimonial
property, inevitably brings about. This
was especially so, as here, where there would be capital made available, after
the sale of the matrimonial home, to allow the Defender to buy a house suitable
for herself and the children. In the
present case, the Defender had not, unlike the wife in the case of
Indeed, her financial circumstances at present, living in the matrimonial home, might be thought to be precarious. Notwithstanding that the Pursuer was presently paying the mortgage and £450.00 per month to the Defender, she had a monthly shortfall of £240.00 per month, and notwithstanding, too, the income she received from her flatted properties. Accordingly, her position was, if anything, worsening and would worsen if a transfer order was made; she could not sustain the upkeep