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OUTER HOUSE, COURT OF SESSION
[2006] CSOH 55
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F59/04
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OPINION OF LORD CLARKE
in the cause
A S (AP)
Pursuer;
against
C S
Defender:
ญญญญญญญญญญญญญญญญญ________________
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Pursuer:
Loudon; Lindsays, WS
Defender: M.A. Clarke;
Drummond Miller
31 March 2006
Introduction
[1] This
is an action for declarator of marriage by habit and repute. It is, perhaps, relatively unusual in that it
is not an action by a pursuer seeking to establish that he or she had been
married by cohabitation with habit and repute to someone who is now
deceased. Both parties to the present
action are alive and the action is defended.
The matter came before me for proof.
[2] The
undisputed facts are as follows. The
pursuer became acquainted with the defender initially in or about 1987 when the
pursuer was training as a nurse. They
met up again in the summer of 1989 when both found themselves working at Ravenscraig
Hospital, Greenock. On 15
July 1989 the pursuer married G R. Very shortly thereafter the pursuer and the
defender started to co-habit. On 15 September 1991 a son, J C S
was born to the parties. The parties
continued living together, initially at property A in Greenock. They moved to property B in Greenock
in 1994. The pursuer raised an action of
divorce against G R which resulted in a decree of divorce being pronounced
on 6 January 1995 (6/1
of process).
[3] On
24 November 1995 a second
child C F S was born of the parties' relationship. A third child, C C S was born on 12 August 2002. The parties separated on or about
2 September 2003. The pursuer is
now in a new relationship with another man.
The Evidence
[4] Those
foregoing facts apart, the evidence I heard at the proof was to the following
effect. The pursuer is 39 years of
age. She is employed as a full-time
nurse. She said that after the parties'
first child was born she changed her surname from R to S. When living at property A in Greenock,
the parties had used a name plate which had both the names R and S upon
it. The pursuer said that some time
after they had moved to property B in Greenock the name
plate used by the parties simply referred to S.
[5] The
parties purchased property B during 1994.
The Land Certificate in relation thereto is 6/2 of process. The proprietorship section provides as
follows:
"PROPRIETOR
C M S and
A R R or S
Spouses, property
B, Greenock equally between them and the survivor of
them".
The date of registration is stated
to be 22 September 1994. Despite that reference to the parties being
spouses, as at 22 September 1994,
the pursuer, as has been seen, remained married to G R. The pursuer said that after she was divorced,
the defender did not suggest that they should go through a marriage ceremony
and she did not ask him to do so. As she
put it "we did not see the need - it wouldn't have changed anything".
[6] The
pursuer maintained that the parties' neighbours in E S took the parties to be
married, as did their friends and work colleagues, and the members of the
church which she attended, Ardgowan Evangelical
Church. The pursuer said that the children's teachers
and the doctors at the general practice, where the parties and the children
were registered, also considered the parties to be husband and wife. She was designated as S on her passport (6/10
of process) which was issued in September 1995.
Under reference to certain photographs (6/28 of process), the pursuer
said that she always wore a wedding ring.
That evidence, however, proved to be somewhat unsatisfactory since she
eventually said that the ring in question was her grandmother's and that there
had been no exchange of rings between herself and the defender.
[7] The
pursuer, in evidence, said that she took responsibility for dealing with any
workmen who had to carry out work at the parties' home and that she also took
responsibility for the payment of utility bills. She did so under reference to 6/12, 6/19,
6/20, 6/21 and 6/22 of process which are addressed to Mrs A S. Insurance documentation 6/13, 6/14 and 6/15
was also referred to which is addressed to Mr and Mrs S, or in the last
mentioned document, to Mrs A S. The
pursuer maintained that when the parties were out together the defender would
introduce her to strangers as Mrs A S.
The defenders' parents, she said, always referred to her as their
daughter-in-law and she would introduce them to others as her
parents-in-law. She was referred to 6/4
and 6/23 of process, a birthday card and a Christmas card from the defenders'
parents where they referred to her as their daughter-in-law and to themselves
as her mother-in-law and father-in-law.
When it came to the baptism of the third of the parties' children, the
minister who was to carry out the service, the Reverend Alan Sorensen, asked
for the date of the parties' marriage.
He was told they were not married.
The Reverend Sorensen asked the pursuer if she would like to go through
a marriage ceremony at or about the same time as the christening. She had told him that she did not "feel any
need to do that". The possibility of a
"double ceremony" was mentioned by some of the parties' family and their
friends. In cross-examination, the
pursuer accepted that the defenders' parents had known that she was married to
another man when the parties were cohabiting between 1989 and 1995. At the time of the third child's christening,
the pursuer said that her relationship with the defender had begun to
deteriorate. The pursuer reiterated that
the defender usually introduced her to others as his wife. She accepted that the parties themselves never
exchanged greeting cards in which they described each other as husband, or wife,
as the case may be. She said they never
discussed the question of marriage because they were happy as they were. It was not true to say that she raised the
topic on a number of occasions and that the defender had "fobbed her off". It was not true to say that she had raised
the subject with the defenders' parents.
[8] The
parties took out a mortgage over their home in 2001. A copy of the standard security in relation
to that mortgage is part of 6/2 of process.
It is signed by both parties and is dated 28 September 2001.
The parties signed C S and A S
against the expression "the debtor". In
the Standard Security appears the following: "C M S and A R S,
spouses, both residing at property B Greenock".
[9] The
pursuer's mother, Mrs R K, was led as a witness. She was aware that the parties had never gone
through any formal marriage ceremony.
The pursuer, she said, had never discussed with her the possibility of
the parties going through such a ceremony.
In general, the witness said, everyone knew the parties as husband and
wife, as a married couple. As far as the
witness herself was concerned, the parties were a married couple - they were "Mr"
and "Mrs". She had been in the company
of both of them when the pursuer referred to the defender as her husband but
the witness agreed, in cross-examination, that this did not occur very often. Mrs K said that she had been present
when the defender introduced the pursuer to others but she could not remember
how he introduced the pursuer. The
pursuer, the witness said, referred to the defenders' parents as "the in-laws".
[10] The next witness was Mrs Dorothy Twaddle. Her evidence, it has to be said, did not
really advance matters much. She lives
in the flat below the flat which the parties occupied at property B. She moved to her flat some five years
ago. She described herself as a
neighbour of the pursuer, but not a close friend of hers. Mrs Twaddle could not remember how the
pursuer referred to the defender. She
said, however, that the defenders' parents were introduced by the pursuer to
her as her mother-in-law and father-in-law.
[11] Ms Margo Workman was led as a witness. She informed the Court that she had known the
pursuer for about 20 years. She had
known the defender longer. She had got
to know both of the parties through working with them in nursing. She had become aware that a relationship had
developed between the parties, in or about 1989, and that, in due course, they
had a child. The witness said that she
had thought that "R" was the pursuer's maiden name. The pursuer had changed her name to S after
the parties' son J was born. Ms Workman
said that she had thought that the parties had got married about that
time. She did not know that the pursuer
was already married. She had discovered
a few years ago that the pursuer had no marriage certificate. This had come about because she had attended
a meeting with a financial adviser, which was also attended by the parties, and
it emerged, in discussion, that because the parties were not married they were
not entitled to any rights in each other's superannuation. Ms Workman said that she went out with the
pursuer on occasion socially, but did not go out with the parties as a
couple. The pursuer, she said, would
refer to the defender as her husband.
The parties' children definitely believed their parents were
married. The witness confirmed that at
the time of the planned christening of the third child, there had been
discussion about the parties not being married and that friends had raised the
possibility of a "double ceremony".
[12] Evidence was led from Ms Maria Avari. She said she had known the parties from the
time when the pursuer was training to be a nurse. She said she saw the pursuer every four weeks
or so. She became aware of the parties
living together 15 or 16 years ago and was aware that they had never been
through a formal marriage ceremony, as she put it. The parties never mentioned the topic to the
witness. The witness said that the
parties' relationship was "very much the same as any couple married or not. They carried on their affairs as if they were
married". She said that she had been in
the parties' company, socially, when the pursuer referred to the defender as
her husband. The witness particularly
remembered the occasion, some 13 years ago, when she herself was married
and, at the wedding, the defender was introduced by the pursuer to the
witness's sisters as her husband. (This
was at a time when the pursuer was still married to G R). Ms Avari maintained that when the couple were
in social groups the defender introduced the pursuer as his wife. He would do so at children's parties.
[13] In cross-examination Ms Avari said that she was not often in
the company of the parties, when they were being introduced to strangers, but
she said that her recollection was that the defender most definitely did, on
occasion, introduce the pursuer as his wife.
[14] In re-examination the witness said that the parties' close
family and friends knew that no wedding ceremony had taken place.
[15] I next heard evidence from the Reverend Alan Sorensen who is a
Church of Scotland Minister at the Mid Kirk Church, Greenock. He advised the Court that he had known the
couple only since 2003. The pursuer's
mother regularly attended his church.
The parties wanted their third child baptised in his church. They advised him that they had not been
married. The Reverend Sorensen did not
consider that this was a barrier to the child being baptised. He said, however, that he had suggested that
the parties might consider marriage. The
pursuer had said that the family did not want a marriage ceremony. She had told the witness that she considered
herself as married. Her children were
not aware that the parties were not married and she did not see the need for a
wedding ceremony. The parties were
introduced to the church congregation, at the baptism ceremony, as Mr and Mrs S.
[16] I heard evidence from Miss Pamela Stewart. She has known the pursuer for eight
years. She got to know the parties
through having children of her own about the same age as the parties'
children. She had taken it that the
parties were married. There was nothing
to indicate that they were not. All the
other parents at the children's school treated them as if they were married. Just before the child, C C S, was christened,
however, somebody in the parties' circle had said there could be two
ceremonies, a baptism and a wedding.
[17] In cross-examination the witness said her impression was that
at the time of the third child's christening, the pursuer did not want to go
through a marriage ceremony because the parties' relationship was, at that
stage, somewhat "rocky". The witness was
aware that the pursuer had previously been married to someone called R.
[18] The last witness was Mr Ian McFadden. He is an elder at the Evangelical
Church which the pursuer had
attended for many years. Her former
husband, G R, had also been a member of that church. Mr McFadden had known the pursuer for
over 30 years. He had also known G R. The pursuer and G R had been married at
the Evangelical Church.
[19] The witness had met the defender he said "after the children
were born". He had assumed that the
parties had been married but from a date that he was not sure about. He was aware that the children had the "S"
surname and that the pursuer was using the name of "S". He recalled that the name plate with the name
R had been removed at some stage from the parties' home. The pursuer had lost membership of the Evangelical
Church when she went to live with
the defender. She did not regain her
membership but she did continue to attend the Church. She lost her membership because the Church
did not allow parties living in adultery to be members of the Church. The pursuer had told the witness, after the
parties' separated, that they had never been married and this had certain legal
consequences.
[20] As well as the evidence adduced from the witnesses led at the
proof, the pursuer relies on three affidavits, 6/24, 6/25 and 6/26 of
process. The first two of the affidavits
are from general practitioners, Dr Patrick Barr and Dr Anne
Pettigrew, who practice at the medical practice attended by the pursuer and her
children. They confirm in the affidavits
that they considered the a parties to be married and that the records kept at
the practice reflected that. The first
named doctor had known the pursuer and her family for 12 years, the second
named had known the pursuer for over 28 years.
The third affidavit is an affidavit from Mrs Barrie Pert, the
headmistress of Ard Primary
School, Greenock. The two older sons of the parties attended
that school. Mrs Pert, in her affidavit,
confirms that both of these children were registered at the school with their
parents described as Mrs A S and Mr C S. The registration form, however, did not disclose
the marital status of the parents. The
witness, however, until November 2005 understood the parties to be married.
[21] The defender elected not to give evidence nor was any other
evidence led on his behalf.
The Law
[22] The theory of the present law in relation to marriage by habit
and repute is stated in Clive: The Law of Husband and Wife in Scotland
(4th Ed.) at para 05.025 to be as follows:
".... if a man and
a woman co-habit as husband and wife in Scotland for a sufficient time and are
generally held and reputed to be husband and wife and are free to marry each other,
they will be presumed to have tacitly consented to be married and, if this
presumption is not rebutted, will be legally married."
In the present case the parties
co-habited for over five years while the pursuer remained married to G R. They had their first child during that
period. It has been authoritatively
decided that when co-habitation has originally been illicit, it might be more
difficult to establish marriage after the removal of the impediment. In Kamperman
v Maciver 1994 SC 230 the Second Division,
under reference to the case of Campbell v Campbell
(1866) 4M 867 said (at p. 232) that
"In view of what
the Lord Justice-Clerk and the other consulted judges in Campbell v Campbell said
at p. 926, the fact that cohabitation has originally been illicit may mean that
it is more difficult to establish marriage on the basis of cohabitation and
repute after the impediment has been removed, and if that is so then evidence
of the cohabitation and repute prior to the removal of the impediment is relevant
at least to the question of whether some change in fact took place once the
impediment was removed." (My
emphasis)
The case of Campbell went
to the House of Lords and is reported at that stage at (1867) 5M (HL) 115. At p. 135, Lord Cranworth, in a passage
relied upon by the Second Division in Kamperman
said as follows:
"Where a man and
woman have lived together as man and wife, at a time when they could not be man
and wife, and they continue to live together in the same manner after it has
become possible for them to become man and wife, the question whether they have
become man and wife is a question not of law but of fact. The law permits them to create that relation
between themselves, and whether they have done so must be decided like any
other question of fact. The circumstance
that they represented themselves to be man and wife, when they knew they were
not so, may reasonably be taken into account in estimating their subsequent
conduct. It may neutralise the effect
which would otherwise have been properly given to their subsequent
co-habitation, ie, it may do so as a matter of fact. I cannot think it must do so as a matter of
law. And if that be so, then all which
any tribunal can do which has to deal with such a question is to look at all
the circumstances, and consider whether they do or do not lead to the
conclusion that the parties did contract marriage at some time after it was
possible for them to marry."
In Low v Gorman 1970 SLT
357, the period of cohabitation after the impediment to marriage had been
removed was only 10 months. In the
previous period of five years, the parties were known to neighbours as husband
and wife but some of their relatives knew that they had not been free to
marry. Three children had been born and
the register of births had been signed by the man as their father. On the facts, Lord Robertson said, at
page 359,
"Although the
repute need not be universal, it must be general, substantially unvarying and
consistent, and not divided. (see Fraser on Husband and Wife, Vo1. 1, p. 402; Petrie
v Petrie, 1911, SC 360, 1911, 1 SLT
43). In the present case, as already
mentioned, the repute during the adulterous cohabitation did not satisfy the
test and no change in this repute took place after 26th February
1966 (the date on which the impediment was removed) or indeed could take place
without some act on the part of the parties.
There was no evidence to show that those who knew that the cohabitation
was at the outset illicit were apprised of any alteration subsequent to 26th February 1966 (the
date on which the impediment was removed).
In other words the cohabitation after that date by repute remained
illicit - ie. without marriage."
[23] Since the law on the subject is based on the existence of tacit
consent of both parties being married, it is obvious that both parties
must, on the evidence, have conducted themselves so as to be held to be man and
wife. As has been observed by Clive op.
cit. at para. 05-034,
"The law on
sufficient repute is difficult to apply in contemporary conditions. Ordinary cohabitation without matrimonial
intent is common place. Most people do
not regard a couple as married unless they have had a marriage ceremony. Names are not conclusive: people can call themselves what they like and
other parties and other people know this.."
Discussion and Decision
[24] In this case the parties cohabited for more than five years
before becoming free to marry. I am
satisfied on the evidence, that their families knew that they were not married
nor free to marry during that period. A
significant aspect of the pursuer's own evidence was that she did not seek to
differentiate the nature of the parties' relationship or its status in the
period from 1989 until January 1995 from its nature and status thereafter. The question of marriage was never discussed
between the parties after January 1995 because "we did not see the need - it
would not change anything". In
cross-examination she said that the parties "were happy as they were". I am prepared to accept the pursuer's
evidence that she referred to the defender as her husband when in company and
introduced him to others as such. But
she did not suggest that that was something she only started to do after she
was divorced. The only specific occasion
which Ms Avari referred to in her evidence, on which she said she heard the
pursuer introducing the defender as her husband was some 13 years ago which was
at a time when the parties were not free to marry. The affidavit evidence of Dr Barr and
Dr Pettigrew, 6/24 and 6/25 of process, indicates that the parties were
regarded as husband and wife at the general practice they attend but they were
so regarded for some time prior to January 1995 when they were not free to be
married. As has been seen, the parties
were described as "spouses" on the title sheet to their home at property B as
at the date registration of the title, 22
September 1994 when they were not free to marry (6/2 of
process). There was no evidence before
me that indicated that there was any real change in the way the parties
regarded their relationship after January 1995 or in how, indeed, that
relationship was viewed by their family, friends, and others with whom they had
contact. The parties' families knew that
the parties were not free to marry before January 1995. Mr Ian McFadden knew this also. My overall impression of the evidence was
that the parties never considered in their own minds that their situation was
any different after the pursuer's divorce, from what it had been before. Their relationship continued exactly as
before. There was no change in the way
they represented themselves to others.
There was, for example, no exchange of rings. (As I have already indicated, it was an
unsatisfactory feature of the pursuer's own evidence that initially she sought
to suggest that she wore a wedding ring but eventually accepted that the ring
she wore was her grandmother's and that there had been no exchange of rings
between parties). The parties had lived
together for five years or so and, in my view, saw no change in the nature of
their relationship or how it should be regarded by the rest of the world after
January 1995. On the evidence,
therefore, in my judgment, the pursuer has not surmounted the obstacle of
demonstrating that the cohabitation which had endured for five years and was
illicit, had been altered after January 1995 due to tacit consent between the
parties that they should be married. The
pursuer's own evidence, which I have quoted above, in my opinion is reflective
of both parties being happy to remain, as averred by the defender "as a modern
cohabiting couple", without being married.
[25] There was another feature of the matter which leads me to the
conclusion that the pursuer has not established her case. In the case of Ackerman v Logan's Executor
2002 SLT 37, an Extra Division appeared to accept, at pages 42-43, a test
applied by the Lord Ordinary in that case that for the pursuer to establish marriage
by cohabitation with habit and repute, the evidence of habit and repute should
be general and consistent such as not to leave any substantial doubt that the
inference of consent should be drawn.
[26] In the present case the defender was not led by the pursuer as
a witness. He himself chose not to give
evidence on his own behalf, nor was any other evidence led on his behalf. The evidence of himself holding himself out
as being married to the pursuer was not, in my judgment, compelling. The pursuer's own mother said she could not
remember the defender introducing the pursuer and she agreed, in
cross-examination, that it was not often that the pursuer referred to the
defender as her husband. Ms Twaddle
could not remember how the pursuer referred to the defender although she did
recall the pursuer introducing the defender's parents as her mother-in-law and
father-in-law. Ms Avari gave some
general evidence that, in company, the defender introduced or referred to the
pursuer as his wife but I did not find the evidence of this witness, taken as a
whole, to be very satisfactory. She was,
at pains, to highlight the one occasion, 13 years ago, at her own wedding, when
the pursuer, she said, introduced the defender as her husband to her
sisters. This witness said that she had
seen the couple regularly over the years and I found it surprising that she
sought to single out this particular occasion, if the position was that the
pursuer and the defender regularly referred to each other as husband and
wife. The witness, Ms Pamela
Stewart, said that the parties just referred to each other as C or A as the
case may be. The defender did represent
himself as the pursuer's spouse in the standard security granted for the
purpose of mortgaging the property at property B (6/14 of process). The significance of that however, is, in my
view, somewhat reduced by the fact that, as has been seen, that was how he
described himself in the title to the property when it was registered in 1994,
at a time when the couple were not free to marry. Accordingly, on the evidence adduced at the
proof I am left with a substantial doubt as to the defender's position in
relation to how he regarded himself and how he represented himself to the rest
of the world. The evidence, in relation
to his position, such as it was, in my judgment, is just as consistent with his
attitude being that the parties' relationship remained the same throughout the
whole period of cohabitation and that he did not have any matrimonial intention,
after January 1995, but was simply happy to carry on his relationship with the
pursuer, as before, when they were not free to marry.
[27] For the foregoing reasons I shall sustain the defender's
plea-in-law and refuse to pronounce decree of declarator as concluded for.
