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OUTER HOUSE, COURT OF SESSION
[2008] CSOH 125
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F136/07
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OPINION OF LORD MATTHEWS
in causa
C M
Pursuer;
against
S T S
Defender:
________________
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Pursuer: Hayhow; Stuart & Stuart WS
Defender: Party
2 September 2008
[1] In
this action the pursuer seeks an order in terms of section 28(2)(a) of the
Family Law (Scotland)
Act 2006 for payment of £50,000 and an order in terms of section 28(2)(b) of
that Act for payment by the defender of £20,000.
[2] The
relevant statutory provisions are set out in the submissions for the pursuer.
Background
[3] It is admitted that the
parties cohabited as husband and wife from January 1998 and that there are two
children of the relationship, namely MDS, born 15 February 1999 and ANS, born
3 September 2002, hereinafter referred to as M and A respectively. The parties
separated on 24 May 2006. The children live with the pursuer and have
regular contact with the defender.
Further details as to that contact will emerge in due course.
[4] The
thrust of the pursuer's case is that she has suffered economic disadvantage in
the interests of the defender and the parties' children by giving up full time
employment and losing certain opportunities. It is also said that the defender
has gained economic advantage by reason of certain benefits he obtained, inter alia, from the fact of
cohabitation and the pursuer's looking after the children.
[5] The
case called before me for Proof on 13
May 2008 and subsequent days when the pursuer was represented by Mr
Hayhow, advocate and the defender appeared on his own behalf.
Evidence
[6] The first witness was the
pursuer herself. She said that she was
thirty five years of age and lived in Roslin.
She was employed part-time as a legal secretary by a firm of solicitors
in Edinburgh. Her relationship with the defender began in
August 1997 when she was living at that same address. That was her own property, she having bought
it in April 1996. The defender at that
time was still living with his parents.
He spent some time with the pursuer and eventually moved in in January 1998.
[7] She
became pregnant and had the two children whom I have already mentioned but the
relationship deteriorated after the birth of the second child. She could not live with the defender and
asked him to leave in April 2006. He
left on 24 May 2006
but the relationship had ended before that.
[8] The
children lived with the pursuer and also partly with the defender on two nights
a week. They went to his house on
Tuesday at tea-time and he took them to school on the Wednesday. He also had them from about midday or thereby on Saturdays until Sunday
evenings. His house was in Roslin which
was very close.
[9] She
began working in February 1989 with VMH when she left school and was employed
there when she met the defender. At that
time she worked full-time, five days a week.
This changed when she fell pregnant with M and she gave up her work in
December 1998. She did not return until
October 2000. Both she and the defender
were happy with this. It was never
considered that the defender should give up his work. In October 2000 she went back on a part-time
basis to VMH working on Thursdays and for 14 hours in total. This continued until June 2002 when she left
to have her second child, who was born in September of that year. She returned to work in May 2004. When off, she had been looking after the
house and the children while the defender was at work.
[10] In May 2004 she worked the same 14 hours on Thursdays and
Fridays and this continued until June 2006 when she started working on Mondays
as well. This was about one month after
the defender left. On Thursdays and
Fridays she worked from 0830 till 1600 hours and on Mondays she worked from
0900 to 1700 hours.
[11] She had never gone back to full-time work because she had to be
there for her children in order to take them to school etc. If she did not have the children there would
have been no reason why she would not have continued working with VMH. Her current salary was £12,000 per annum
gross. During the periods when she was
off her only income was her statutory maternity pay. Her income as a part-time worker was lower
than it would have been had she been full-time.
[12] 6/35 of process was a document prepared by the practice manager
at VMH showing her actual salary from 1988/89 until 2007/08. She confirmed that the document accurately
reflected the sums she was paid during that period, namely £47,333. She also confirmed that the figure for her
potential earnings recorded there, amounting to £165,040, was accurate. The difference between these was
£117,707. This reflected the difference
between what she earned on a part-time basis and what she would have earned if
working full-time.
[13] She was a member of the firm's pension scheme to which both
employer and employee contributed. She
thought that she had joined it in the mid-nineties if not before. She stopped making any contribution when she
left her employment to have her first child and had not resumed. She was not able to afford it. She thought that her contribution was 3% of
her salary but 6/32 of process, a letter dated 15 January 2008 indicated that both she and
her employer paid 5% of the salary.
[14] If she had not given up her work she would have continued to
contribute to the pension scheme.
[15] Page 2 of the letter indicated that no contributions had been
paid in the last 12 months and the current value of the fund as at 1 January 2008 was £8,463.92. The transfer value was £5,641.69.
[16] 6/24 of process was a letter from an Iain Duckworth, a
consulting financial planner with Sutherland Independent Limited, dated 28 March 2008. This firm managed the VMH pension.
[17] This was going to be spoken to by Mr Duckworth but it appeared
that if she had carried on contributing from 1998 the notional value of the
pension as at 2008 would have been £80,618.
[18] She had three O grades but in 1998 her employer offered to pay
for her to go to Telford College
to study for a paralegal qualification in residential conveyancing. Unfortunately she was pregnant when this was
offered and she was not able to take it up.
She could have done so but chose not to, planning to be at home with her
child. She had not known how long the
course would last. If she had taken it
she would have expected that there would be a job with VMH and her salary would
have increased. She would have had more
options to better herself and an increased earning capacity and would have been
more attractive to other employers. She
understood that the salary of such paralegals was now in the region of
£28-32,000. It would now be difficult to
do this course on a part-time basis although there might be some provision for
it later on. There was no position as a
part-time paralegal with VMH at the moment.
[19] When she first met the defender he was an architectural
technician working on a contract basis with a few firms. She believed that he had some qualifications
from school and possibly from college.
He started a masters degree in project management and building
construction at some point in 2005. He
had not yet obtained the qualification when they separated. She thought that perhaps he had six months to
one year to go. As far as she knew he
did eventually complete it. He studied
at weekends and during the evenings and she looked after the children while he
was doing so. He wanted a permanent
position with Midlothian Council but she had no idea if he had obtained it,
although she knew that he was now a project manager with the council on a
contract basis. His income may have
increased when they lived together.
[20] When they started to cohabit he owned a flat in West
Park Place, Dalry which was rented out. He continued to rent it out for a time after
they cohabited and it was sold in October or November 1998. He kept the rental
before that and did not share it with her. He made a profit of around £3,500 on
the sale of the flat and he bought a car with part of the proceeds. There was a mortgage over this flat but it
ceased obviously when the property was sold.
[21] Her own house was fully furnished with her own
furnishings. Her property was more
substantial, larger and more comfortable than the Dalry flat. The defender merely brought a leather sofa to
the house.
[22] Towards the end of the cohabitation they were entitled to
certain tax credits based on their joint incomes. She thought that they claimed those since the
birth of M but she could not say exactly when the claims commenced.
[23] An overpayment was made while they lived together. The money
was to be used for family purposes and none of it was used by her for her own
purposes. She had an obligation to repay
the tax credit but she believed it was, or should be, an obligation owed
jointly by the defender.
[24] Number 6/26 was a letter from HM Revenue & Customs dated 5 July 2006 indicating that the sum of
£5,111.97 was overpaid. It was to be
repaid by her at the rate of £10 per month starting on 5 August 2006.
This consisted of an overpayment of £3,483.19 for the years to 5 April 2004 and a payment of
£1.629.78 for the year to 5 April 2005. The parties were cohabiting during both these
years.
[25] She was making the repayments but could not say if the defender
was, although she did not believe so. He
had not offered to pay any part of it.
[26] The defender contributed to household bills while the parties
cohabited. He was the breadwinner when
she was not working. When she was working
she contributed to food, bills, the childrens clothing etc. and also put some
money in the bank, although some of it went to pay for the upkeep of two native
ponies. Each of these was obtained while
the parties cohabited, the second one being for their daughter. Some of the money also paid for clothes or
shoes for herself.
[27] Some of her income was applied to her own support and the
defender applied some of his money to his own interests.
[28] When the parties began living together she had a loan with the
Skipton Building Society, which was secured over the house. The defender paid certain insurance premiums
in relation to an endowment policy in connection with the mortgage. If the mortgage had not been paid the
building society would have repossessed the property so he paid the premiums in
order to keep a roof over the children's heads.
[29] The mortgage was later increased by £23,000.
[30] 6/2 was a standard security for £26,000 granted on 24 April 1996 and 6/3 was a further
standard security for £23,000 granted on 15 December 1998.
[31] These debts were due by her and her alone.
[32] She was therefore left with a bigger debt after the
cohabitation ceased than she had had before.
[33] 6/9 contained certain statements in connection with the first
mortgage. At page (j) it could be seen
that as at 31 December 2006
the sum due was £23,269.86, plus an administration fee of £175, i.e. by my
calculation a total of £23, 444.86.
[34] From 6/10, page (i) in relation to the second loan one could
see that the sum outstanding as at 31
December 2006 was £20,390.92.
[35] The total figure outstanding, therefore, as at 31 December 2006 was £43,835.78.
[36] She agreed that the defender transferred into joint names an
endowment policy which he had taken out with Friends Provident. She also had an endowment policy in her own
name which she transferred into joint names.
That one was with Standard Life.
The transfers took place at the same time.
[37] 6/14 was a letter from Friends Provident dated 25 February 2008 relating to his
policy and showing that as at 24 May
2006 it had a surrender value of £8,121.86.
[38] In January 1999 that value was £3,524.06.
[39] 6/15 was another letter from Friends Provident dated 28 March 2008 showing that as at 1 January 1998 the surrender value was
£2,852.88.
[40] 6/16 was a letter from Standard Life dated 27 February 2008 relating to her own
policy. It showed that the surrender
value as at 24 May 2006 was
£5,932.48.
[41] She said that although the defender had overnight contact twice
a week she was their primary carer. She
intended to remain in that position until they had reached sixteen at the
least. That was seven years away for M
and just under 11 years away for A. (In fact it is nearer 10 years for A). The defender did not share the burden of
child care equally with her.
[42] The children went to primary school from 0850 till 1500 hours
in the case of A and 1515 in the case of M.
The pursuer worked in Edinburgh. She was not therefore able to take them to school
and pick them up after school when she was working but her father did that for
her. His name was D M. These were services which he provided both
before and after the separation. He
helped two days a week when she worked after M was born and turned up at her
house at around 0730 or 0800 hours, staying till 1730 or 1800 hours. He also helped after A was born when she went
back to work. He would take M to the
nursery and look after A in the house.
He then collected M from nursery and looked after the children till she
came home. The defender would have been
at work while all this was going on.
[43] Her father now took the children to school and brought A back
home again, M being able to make his own way home. He would give them their tea on Thursdays and
Fridays. The children would be up when
he arrived and were able to dress themselves now. He would give them breakfast and did this
each of the three days she worked. He
had helped financially and with the provision of clothing and food from time to
time. He lived in Humbie, a drive of
some thirty to thirty five minutes away.
[44] He had never charged her for his services or claimed any
expenses and it was fair to say he was subsidising her. She did not think that this was fair. The defender had the primary obligation to
assist her. She did not think that she
could rely on her father indefinitely and would be concerned as he got
older. He was now 66 years of age. He also helped during the school holidays by
looking after the children when she was at work. They stayed at his house one night during the
week. She was happy with the care
provided by her father but if he was not providing it then she would need to
pay for help.
[45] Her job would not allow her to look after the children herself
and she would need help both before and after school as well as during the
holidays. Secretaries were expected to
be there from 9 to 5 and she could not do the job without assistance.
[46] There were breakfast clubs and after-school clubs at the
school. She thought that the breakfast
club started at around 0700 or 0730 and the after-school club perhaps ceased at
1800 or 1830 hours. She would be able to
use them if she could afford it but there were charges. 6/21 was a list of charges showing that for
two children for a full week the price would be £36.50 for the breakfast
club. The after-school club cost £7.30
each child per day, as I read the document. A half session on a Friday cost
£7.60 and a full session was £9.75. She
thought that the full session included breakfast but she was not sure.
[47] A full week for the first child was £38 and for the second was
£35.85.
[48] There were also holiday clubs.
Children would be looked after and perhaps taken off on trips and the
like but she did not know when that began.
She imagined that it would accommodate working parents.
[49] The holiday club cost £71.45 per week for the first child and £69.30
per week for the second, for full days. The costs for a week of half days were
respectively £44 and £42. The daily rate was £14.95 for a full day and £9.25
for a half.
[50] She thought that the children would be on holiday for at least
eleven weeks a year but she was not sure.
If she were looking after the children during the holidays she could not
work.
[51] She did, however, take some time off during the holidays and
when she had to work she was supported by her father.
[52] As matters stood she did not think that there was any prospect
of increasing her working hours unless the children went to the after-school
club. She was not in a position to work
from 0930 to 1400 hours five days a week.
She did not know if that was available.
[53] She agreed that the children might not need as much care as
they grew older and she hoped to be able to increase her hours of work when
they became of a legal age to be left alone.
She would not be happy leaving them until at least M was sixteen and he
was able to look after his sister. It was
not fair on her father that he had to keep assisting.
[54] She had made application to the Child Support Agency for
assistance and she understood that they had assessed a figure. There was however a variation being
investigated at the moment. She had been
getting £75.10 per month for the two children.
It was being paid but then ceased at some point in 2007. Enforcement action had been taken and arrears
of £454 or thereby had been paid.
[55] 6/22 was a letter from the CSA dated 27 February 2008 indicating that as at 27 February 2008 there were
arrears of £454.74 and 6/34 was a letter dated 2 April 2008 discussing certain enforcement
actions. She said that she believed the
payment was made after that letter.
[56] In cross-examination she agreed that she was working Mondays,
Thursdays and Fridays. The defender had
the children on Tuesday nights so she had Wednesdays free. She also had some free time at the weekends
but this did not happen every weekend.
It was suggested that this gave her time to do a paralegal course but
she said that she could not be employed at weekends as a paralegal.
[57] She agreed that she could perhaps study at weekends but she
could not do a full-time paralegal position with her employer.
[58] Nothing had happened about her paralegal course since 1998
because she had been bringing up two children.
She repeated that she could not work full-time. She agreed that if parties were agreed and
were financially able then it was normal for a mother to take time off work to
look after children.
[59] She was asked how she helped him with studies and she said that
she did this by looking after the children when he was studying at
weekends. He suggested that that was only
for six months or thereby from October 2005 until April 2006 and that the
children were a lot younger so that their bed time was very early. She said that they went to bed any time
between 1930 and 2000 hours. There were
times, she said when he needed the room for himself without the children being
there.
[60] It was suggested by him that he played a full active role in
the childrens lives at weekends when he was studying during the six month
period and she denied that. He put to
her that there was only one weekend when she took the children away and she
said that was not her understanding of it.
He often went to the library to study at weekends and she had to look
after the children then.
[61] She agreed with the defender that the £23,000 was taken out in
order to convert the one bedroom flat into a three bedroom one by virtue of the
purchase of an office below for £18,500.
[62] She was asked if the extra money and some income from him was
used to convert the office and she agreed with that.
[63] He suggested that it was agreed that 18
Main Street should be put into joint names but
this was objected to on the grounds of no Record. That objection was well founded in my opinion
and no answer was given to the question.
[64] She reiterated that part of the profit on the sale of his flat
was used to purchase a car. It was
suggested by him that that was bought because a bigger car was needed for the
family since M was now on the scene. She
said that she did not know why it was bought.
They had two cars before the child was born. The defender suggested that
one was a Micra and one was a Golf which was past its serviceable life. She agreed that it was an aged car.
[65] She said that when M was born and she was on maternity leave
she had a horse which was kept at a farm.
On his birth it went to a field.
She agreed that it was then under constant treatment from a vet and had
to be stabled continuously but she said that the vet treatment was covered by
insurance. She agreed that once certain
bills had been met the insured, namely herself, had to pay certain sums but
said that there was no subsequent treatment and the horse had had to be put to
sleep. She probably met the bills for
stabling for the six month period from sums in her bank account and possibly
the Family Allowance.
[66] It was put to her that the two additional rooms needed extra
furniture and she said that an additional sofa was bought. Additional beds were purchased by her father.
It was suggested that there was a chest of drawers to keep clothes in and she
said that not everything was funded by themselves. The carpet in the bedroom was funded by her
father and his parents funded the stair carpet.
There were few items in which they invested jointly. The majority of the house was fully furnished
before he moved in.
[67] It was suggested to her that after the horse died she bought
two additional ponies but she said that the first of these was on the scene
while the horse was still alive. She had
hens and three terriers which belonged to her and someone called TC. It was put to her that he had asked on
several occasions for certain documents to do with his qualifications and his
birth certificate. She agreed that she
had been asked for this by e-mail and that they had been delivered to him three
or four weeks previously. He had not
asked for them two years previously as he suggested. He suggested that he needed to have his
qualifications in order to be able to finalise his position and give
information to the CSA but this was not in the form of a question.
[68] She agreed that once M was born the defender made the mortgage
payments. He put to her that he paid
funds directly into her Clydesdale Bank account and she agreed that he did so
for living expenses to cover insurance, house insurance and "endowment".
[69] She agreed that he had asked to have the children for two weeks
instead of one week this summer but nothing had as yet been arranged.
[70] In re-examination she said that she believed that he bought the
car to replace the one which he had at that time. He had a VW Golf and he bought a BMW which
was older than the Golf.
[71] She had owned the horse before cohabiting with Mr S and it was
put down. It had been insured for vet
bills and the bulk of those were covered by the insurance although there was a
shortfall. She made up the shortfall
from resources in her own bank account.
[72] The horse was put to sleep in March 2003. At that time she was off work with A and was
in receipt of maternity pay. She did not
know if weekends and Wednesdays furnished sufficient time to study for a course
and even if she did study she did not know if there would be a job. There were currently no part-time positions
as a paralegal in the firm. However, her
employer would not fund her attendance at a course if there was no job
available for her and if she went to another firm they would seek
reimbursement.
[73] The second witness was the pursuer's father D M. He was frequently in the house when the
parties were together and started assisting with childcare when M was about 18
months old in October 2000. He offered
to look after him while his daughter was at her work. That continued until she was carrying A and
gave up work in late Spring of 2002. A
was born in the September of that year and he resumed his child care when A was
about 18 months old in May 2004. Since
then he had been looking after them both.
Since June 2006 that had been three days a week, Mondays, Thursdays and
Fridays. He left his home in Humbie
about 0700 hours and arrived at about 0735.
He would leave in the evening when his daughter came home from work and
would get back to his own house about 1830 hours. He would generally socialise with the
children and would help them to get up and dressed if they were not already
dressed. They were probably able to do that
themselves now. He would go downstairs
with them and sometimes have breakfast together. He would check that everything was alright
for the school, his daughter usually seeing to a packed lunch or giving them
dinner money. He would double check it
however. He would then walk A to
school. M was able to go on his own but
sometimes he came with them. They
arrived at the school around 0845 and that was the end of his morning
shift. Before either was attending
school he had them all day. A started
school in August 2007 having been at nursery school beforehand. She only went to the nursery in the morning
and he would look after her in the afternoon.
The nursery was in the same building as the primary school. He was able to take her at the same time as
M. After he had dropped the children off
in the morning he would go to the gym until about lunchtime and then he would
do some shopping for his daughter and the children. That provided financial assistance as well as
the practical assistance of doing the shopping.
His wife worked full time so he did the shopping for her as well.
[74] He would pick up A at 1500 hours and M would come home on his
own at 1515. He had been doing this
since he started Primary 5 in August 2007.
Then they would have snacks and after that he would check their homework
or they would relax. He enjoyed doing
the homework.
[75] He was now retired but he had been involved in teacher training
since retiring, usually on a Tuesday afternoon.
He taught primary teachers how to teach French but he did not know if
there would be funding in place for this in the future. He had previously been in charge of a Modern
Languages Department in a secondary school.
If funding became available for the teacher training then there would be
no clash with his childcare commitments if he was required on a Tuesday. If there was a clash he would hope to
negotiate something with the organisers or perhaps his daughter could organise
something with her employers.
[76] After homework what they did depended on the time of year. In the summer they could go to the park or go
cycling or walking. During the winter
they would stay inside. His daughter
normally came home around 1730 to 1745 except on a Monday when she would be
home by about 1645.
[77] During the holidays things carried on as usual. His daughter did not have school holidays
herself so he was required as much as he was throughout the school year. He would take the children places and do
things that they enjoyed although they liked playing with their friends as much
as anything. He had the same timetable
as far as arriving and departing was concerned.
He never sought payment or expenses.
The journey from his home and back only used about a gallon of petrol
and he was really pleased to be able to help out. He regarded himself as privileged to be part
of the children's upbringing and was happy to provide financial
assistance. There was no way his
daughter could pay for childcare. If he
did not assist with her he did not believe that she would have the financial
ability to pay for it.
[78] He was 66 years old and until last year he would have said that
he felt fine. However about a year
previously he had felt some stiffness in his shoulders and joints and over the
course of time that got progressively worse.
He saw his general practitioner in October and it was thought that his
condition was due to a reaction to a drug which he was taking to reduce his
cholesterol. He stopped taking the drug
but he was still in pain doing activities such as driving so he had been
undergoing some blood tests, the results of which were expected in a week. It was suspected that he might have
rheumatoid arthritis. He did not know if
his condition would disappear or get worse or just stay the same and could not
really say what his position would be next year. He was however absolutely willing to continue
to assist.
[79] In cross-examination he said, as I understood it, that he would
be happy to have the defender take the children on a Wednesday evening rather
than a Thursday which would save him a trip.
If the defender had the children on a Thursday, that would relieve him
from a morning shift on the Friday.
[80] He agreed that while the defender was still cohabiting with his
daughter he would visit the house to see her.
[81] The next witness was Miss Caroline McCleery. She was the practice manager with VMH
LLP. She took up office there in January
1999 and was based at an office at 34a Raeburn Place,
Edinburgh.
The company had four offices.
There were six partners and around forty members of staff. Her responsibilities included practice
management, Human Relations, recruitment, IT, pensions, insurances and
premises.
[82] She had access to personnel records. She confirmed that the pursuer was an
employee there and had been employed since February 1989 in various offices.
She was now a legal secretary at South Clerk Street.
[83] 6/20 was a letter written by the witness dated 21 February 2008. The information on which she based the letter
was taken from the pursuer's personnel file. The pursuer had taken two breaks
from December 1998 till November 2000 and from June 2002 till May 2004 when her
children were born. As with all legal secretaries with her experience, the
opportunity was available to the pursuer to study for a paralegal
qualification, funded by the firm, to develop her career. This was an opportunity the pursuer felt she
had to turn down in 1998 due to her pregnancy and the family commitments this
would bring. That information was
obtained from Phillip Valente, a partner in the firm.
[84] She said that if a qualification was relevant to a job then the
firm would support the person financially and practically, in other words they
would pay for the qualification and give time off for exams or studying. The paralegal qualification would have
related to residential conveyancing, in which field the pursuer worked as a
legal secretary.
[85] Currently there was a paralegal employed by the firm in that area. She was slightly older than the pursuer and
had come to the firm with the qualifications.
[86] There was a salary differential between full-time legal secretaries
and full-time paralegals. The rate for a
paralegal was between £28-32,000 depending on the person's experience and the
rate for a full-time legal secretary would be between £17,000 and £21,000 or
£22,000.
[87] Had circumstances been different and the pursuer had completed
her paralegal qualification she could be earning in the region of £28-32,000
according to the letter. That would have
however been as a full-time residential conveyancing paralegal. The firm would not employ paralegals in
conveyancing on a part-time basis because clients needed to speak to the person
dealing with their case at any time.
Such employment had not been offered in the past and there were no plans
to do so now.
[88] If the pursuer had completed the qualification in 1998/99 she
would have had the chance to take up a job with the firm in that capacity. One of her contemporaries had taken the
qualification in 1998 and had taken up employment from January 2000. She thought that the training could take up
to 18 months to complete.
[89] 6/35 was certain salary information which the witness
compiled. It showed the pursuer's actual
salary (gross) from the tax year 1998/9 to the tax year 2007/08. It also showed what she could have earned as
a full-time legal secretary had she carried on working on a full-time basis for
those years.
[90] The total difference between what she actually earned in those
years and the potential earnings was £117,707, as I have indicated.
[91] The figures were taken from the pursuer's P60 and an
explanation for the figures in 1998/1999 and 1999/2000 was set out at the
bottom of the page showing that maternity pay, holiday pay and statutory
maternity pay were included in the calculations.
[92] That was why certain figures were shown as having been earned
although she was not at work in particular tax years.
[93] The potential earnings were what she could have made as a legal
secretary. They would have been
substantially higher if she had been working as a paralegal.
[94] She thought that in January 2000 a paralegal would have been
earning around £18,000 and a secretary would have been earning around £15,000,
so the difference in that year was around 20%. The difference was greater now.
[95] In cross-examination she agreed that the pursuer started work
in 1989. She could not say why the offer
to qualify as a paralegal was not made until nine years later when she was
pregnant. The witness was not in the
firm at that time.
[96] There had been no specific offer made since then but if the
pursuer had wanted to take the qualification she would have had the opportunity
to do it. Nonetheless she could not be
employed as a paralegal on a part-time basis.
[97] She did not know the personal circumstances of the contemporary
who had taken up the offer. She no
longer worked with the firm.
[98] She agreed that there were a lot of legal secretaries in the
firm and that it was quite common for them to take breaks in order to have
children. She had never given evidence
about loss of earnings before.
[99] The next witness was Phillip Joseph John Valente, a partner
with Valente McCombie Hunter or VMH. He
had been a solicitor for 26 years and a partner for 21 years. In fact he was a founding partner. His activities were principally in the
residential conveyancing department. He
was managing partner and had been for 20 years. The pursuer worked for the firm, having
started in 1989 when she left school, and she was now a legal secretary.
[100] She had started out as an office junior but had been a legal
secretary for a considerable time. She
worked for Mr Valente's team and he would have some involvement with her on a
daily basis.
[101] Since 1986 the policy of the firm was to offer staff the
opportunity to take further relevant qualifications. In particular, secretaries could attempt to
qualify to become paralegals. The
pursuer was offered the chance in 1998.
He was asked why it took till then to make the offer and he said it was
a question of experience. She had been a
junior for a number of years and then a junior typist and had worked up and
achieved a level of responsibility and ability that merited the chance. The course would have taken around 9 months
or so over two terms. She did not take
it up because, he believed, she was pregnant.
His memory of the matter was slightly vague. If she had taken it up in 1998 there would
not necessarily have been a job available for her immediately but that would
have been the aim. The full-time
paralegals worked on their own case load.
The firm had not employed part-time paralegals and there was no plan to
do so. The paralegals handled their own
case loads and reported to a partner. It
was important that clients be able to get hold of them on a day to day
basis. There was a significant salary
differential between legal secretaries and paralegals. One paralegal in the firm was earning well in
excess of £30,000. There was a
significant differential between the salaries for the two posts at the time
when the pursuer could have qualified as a paralegal. The firm was still prepared to offer paralegal
training to the pursuer but if she took it up she would not be able to work on
a part time basis. That policy was not
expected to change. They paid their
legal secretaries the professional norm which was around £20-22,000. A paralegal would be paid at least
£30,000. The holder of a paralegal qualification
would be more attractive in the legal market and would generally find it easier
to secure new employment.
[102] In cross-examination he was asked whether it was up to an
individual to make it known that they were interested in obtaining a qualification. He said that it was made known in the terms
of engagement that the firm encouraged people to take on additional education
or training but sometimes secretaries approached them about it.
[103] It had been open to the pursuer to approach the firm before they
approached her. They did so because they
thought she was ready. He did not recall
her approaching the firm before that. He was asked why the offer came when she
was considering a family and he said that she was not taking maternity leave at
that stage. The offer must have been in
the early stages of her pregnancy. She
had shown considerable promise and was excellent with clients. It was possibly for staff retention reasons
as much as anything else that they offered her the opportunity. If she had approached them two or three years
earlier for example they would have discussed the matter.
[104] Since 1998 she had mentioned that she would be happy to do it in
future but her family circumstances were such that she could not comfortably do
it. He could not speak to what she did
in her free time but perhaps it was sufficient to allow her to study for the
qualification.
[105] In re-examination he said that he thought that the pursuer was
ready to embark on a qualification before 1998.
Apart from her family he could not think of any other reason why the
opportunity was not taken up in that year.
[106] The last witness for the pursuer was Iain Alexander
Duckworth. He was an independent
financial advisor who worked with Sutherland Independent. He held a BA in Accounting and Finance and
had an Advanced Financial Certificate as well as an S60 authorising him to
advise on pensions. He had trained as a
chartered accountant.
[107] VMH had been a client of his for 15 years and he advised their
staff on pensions. There was a personal
pension scheme to which both the employee and the employer contributed. These were run by both Scottish Equitable and
Scottish Widows. The pursuer was a staff
member and a member of the Scottish Equitable scheme.
[108] The contributions were based on a proportion of the employee's
salary. VMH would only contribute if the
employee also contributed. The
contributions did not necessarily have to be equal but they were in the
pursuer's case. He did not know when she
started but her plan was active before 1998.
She had last contributed before taking maternity leave in 1998. Both she and her employer contributed 5% so
the contributions were 10% of her gross salary.
[109] He was asked to carry out a projection as to what the pension
would have been worth had she carried on contributing as a full-time salaried
employee from 1998 to date.
[110] 6/24 was a letter of 28
March 2008 which he had written to the pursuer's solicitor setting
out its terms of reference. He had spoken
to Caroline McCleery in order to ascertain the level of the pursuer's notional
salary. Following that conversation it
was agreed that a figure of 3% per annum was reasonable as an assumed salary
increase. Miss McCleery assured him of
this.
[111] He also assumed a rate of growth of 5% per annum. He explained that an argument could be made
for a higher growth and that his projected figure was a conservative one. He went into his methodology but that was not
challenged in cross-examination and I need not take up time with it.
[112] The assumption for inflation reflected the increase in
salary.
[113] The table attached to the letter showed his calculations. By way of explanation one can look at the
first set of figures. In 1998 the salary
was £14,040 and assuming a contribution of 5% by employee and employer or £702
each the total contributions would amount to £1,404. Assuming 5% growth per annum compounded then
those contributions would be worth £15, 897 at December 2007. The figure for fund growth decreased with
each passing year because there were fewer years of investment.
[114] The total projected value in the fund would have been £80,618 by
the end of 2007.
[115] That took no account of the value of the fund from the contributions
made previously. 6/32 was a letter dated
15 January 2008 from Aegon
Scottish Equitable, page 2 of which
showed the value of the fund as being £8,463.92 as at 1 January 2008.
If she had carried on contributing to the fund at the notional rate then
the value of the fund as at December 2007 would have been the aggregate of that
figure and the £80,618 to which I have already referred.
[116] In cross-examination he said the super-annuation was generally a
final salary scheme but it related to payments made by employees. It was put to him that if there was a career
break then an employee could not contribute anything and he said that the
legislation had changed. It used to be
that one had to have earned income to contribute but that changed in 2006. Before that, however, the matter had to be
looked at in the context of a tax year.
If a legal secretary for example stopped work in December 1998 then she
would be able to make contributions for the tax year 1998/99 and the tax
legislation would also have allowed her to contribute the following year as
well even if she had no earned income.
[117] It was suggested that the figures were incorrect because she had
only been employed for either two or three days per week when she went back to
work. He explained that all he had been
asked to do was to make an assumption that she maintained full employment.
[118] He agreed that a lot of legal secretaries took a career break and
they would either make no contribution or reduced contributions.
[119] If someone had an existing pension he would quite possibly advise
them to keep it going.
[120] It was suggested that 2007 was after the date of the separation
and he confirmed the terms of his remit.
There was nothing to stop adjustments being made to his figures, which
were purely arithmetical.
[121] With that the pursuer's Proof was closed.
[122] The defender then gave evidence on his own behalf. Before he started Mr Hayhow indicated
that he was concerned that the defender might stray into matters which were not
the subject of pleadings and were not put to the pursuer. In view of the fact that the defender's
evidence in chief was effectively to be by way of narrative I allowed it to be
received generally under reservation.
[123] Mr S confirmed that he was 41 years of age and lived in Roslin. He confirmed the details of the parties'
cohabitation between January 1998 and 24
May 2006 and confirmed the details of the children.
[124] He said that the pursuer was claiming that she had suffered
economic disadvantage in connection with her employment and pension. He said that her own witnesses had
demonstrated that that was not the case.
She could have applied for the paralegal qualification in 1996. That had been confirmed by Mr Valente who had
said that the study period would have been in the region of twelve months.
[125] Mr Valente had also confirmed that after completion of the
qualification no job was necessarily available.
[126] Both Caroline McCleery and Mr Valente had confirmed that the
chance to take up paralegal studies still existed today. In the nine years after becoming a mother the
pursuer did not demonstrate any interest in engaging in the employment
opportunities which were available. The
amount of free time which the pursuer now had was greater than was enjoyed by
most legal secretaries who were engaged in full-time work. Caroline McCleery confirmed that a former
colleague of the pursuer's was also a young mother and was working as a
paralegal albeit in a different firm of solicitors.
[127] (That was not my understanding of what Ms McCleery said)
[128] As far as earnings were concerned he said that many legal
secretaries take maternity leave and a career break. The pursuer did that and was now working
three days a week. Her earnings had
increased with inflation albeit on a pro rata basis.
[129] In relation to the pension Mr Duckworth had confirmed that
contributions could only be made by employees.
The law had changed in 2006 but for the period in question it was not
possible for people not in employment to contribute to a pension fund. Therefore the pattern of contributions with
breaks in it would be exactly the same for any parent taking career breaks to
care for children.
[130] It had been said that the pursuer was unable to work more
hours. Since he took the children on a
Tuesday evening and then to school on the Wednesday morning that gave her a
free day on the Wednesday albeit she might have to leave work early. Since he had a house at 26
Main Street which was very close to the childrens
house and the school as well as his own place of work he could take them to
school every morning. They did not have
to stay overnight with him and it had been done in the past. In the past if he had to be through in Glasgow
and he had had the children on a Tuesday night the pursuer had taken the morning
shift, as it were, so matters were flexible.
He had also mentioned in cross-examination of Mr M that it was possible
for him to change from a Tuesday to a Wednesday evening thereby freeing up Mr
M's Thursday morning shift.
[131] Turning to another matter, it had been suggested that because he
was cohabiting with the pursuer he was able to further his own career by
studying and taking a masters degree in order to become a project manager with
a substantial income. That was not the
case. He did not complete the masters
degree during the cohabitation and in fact had not yet completed it. He started it in October 2005 and left 18
Main Street in May 2006 some seven months
later. At that time he had just
completed the examinations at the end of the first term. He explained that the course was broken down
over two years on a day release basis so there was still a further year of
examinations and assigned work. After
successful completion of the two years one could then proceed to submit a
dissertation. His dissertation was still
outstanding so he was not yet in receipt of the degree. His first examinations were at the end of
April or beginning of May 2006. The
course runs from October until May. It
started again in October 2006 and finished in May 2007. He intended to submit his dissertation in
September this year.
[132] He said that his income was exactly the same now as it had been
when he left 18 Main Street. Because he had passed the exams, though, he
had been offered a job in January 2008 with Midlothian Council on a full-time
basis as opposed to a contracted basis.
He had not yet been able to formalise that as there were a number of
documents which he needed to provide the personnel department with. He had left 18 Main
Street without these documents. His solicitor had written to the pursuer
asking for them. He had asked her for copies of previous qualifications which
he had mentioned in his application. He
was now in receipt of them so he anticipated that the post would soon be
finalised and he would go onto the payroll very soon.
[133] It was therefore only a matter of six or seven months when he was
studying in the house. He was working
full-time at that time albeit taking one day off a week from October until April
and then the requisite days off for his examinations. He did as much as possible to increase his
hours and keep up to the standard council 35 hour week on Mondays to Thursdays
in order to provide for his family and meet the demands of a family home. On a Friday he would attend university during
the first year, the university day being a Monday during his second year.
[134] Therefore there was only a short period when he was studying
while the parties cohabited. It was
claimed that she supported him throughout this and allowed him to carry on his
studies. She had said in evidence that
at that time the children were three years younger and bedtimes were early
being about 7.30 to 8.00 in the evening.
That allowed him to study while the children were in bed and let her
have the evenings free.
[135] He admitted that from time to time he went to Heriot
Watt University
and she cared for the children. That was
generally done at weekends and he tried to limit it to four hours at a
time. He always made it a priority to
participate in the lives of the children every weekend. He was not in receipt of a significant income
as was stated in the papers.
[136] It had been claimed that when he moved into number 18 he lived
rent free and that allowed him to rent out his own flat at West
Park Place, Dalry.
That was not true. He never lived
rent free, always making contributions.
Not too long after he moved in, an additional loan of £23,500 was taken
out in order to purchase the office below.
The flat in West Park Place
was rented out but not because he had moved in with the pursuer. It had been rented out since 1995 when he was
working overseas with the Property Services Agency and on his return the lease
had not expired.
[137] The pursuer became pregnant around May 1998. They were living in a one bedroom flat at
number 18 Main Street and
they needed larger accommodation with a child coming along. They considered larger houses in the Roslin
area but the flat below was up for sale so they decided to buy it. That was why the loan of £23,000 was taken
out. The whole property was converted
into a three bedroom dwellinghouse. At
that time he sold his flat in West Park Place
so that he could concentrate on the new mortgage commitment and focus on
getting the office renovated so as to turn the two properties into one
house. He continued to make the mortgage
payments for the next eight years until the separation. He thought that it was around £370 per
month. Initially it was an endowment mortgage
and the payments were lower before it changed to a repayment mortgage.
[138] The office premises cost £18,500.
There was not much of a market for commercial property in Main
Street, Roslin, there being hardly any business
trade in the street. He applied for a
change of use from commercial to residential and that was granted. Planning applications were submitted to strip
out the office façade, windows, toilet etc and change it into a more
residential dwelling. He made the
building warrant submission for all the works.
There was a good deal of work involved at that time. It was said that his contributions were
alimentary but that made light of his time, his effort and his
involvement. "Alimentary" suggested some
kind of day to day nourishment but his investment was long term. For example, he provided a wood burning stove
which would last longer than the lifetimes of the parties. He and the pursuer obtained a lot of salvage
items from salvage yards and they had been installed. Work was done throughout the property to
bring it up to standard. As he indicated
the toilet was demolished and wall finishings were stripped out. He did not regard any of that as alimentary
in nature.
[139] He was not just living there as some sort of lodger paying
rent. He was the breadwinner and did as
much as possible to provide for his family.
They went on holidays abroad every year.
Every room was redecorated except the kitchen. The bathroom was fitted with marble tiles
which were bought and installed by him.
A laminate floor was put down.
[140] He was and continued to be the children's father and he tried to
provide the best accommodation for them.
[141] He had left 18 Main Street with no assets at all so to claim that
the pursuer had been financially disadvantaged was totally untrue. On the other hand he had been. He had been in the property market since he
bought his first flat in West Park Place
in 1993, having paid a mortgage all that time till 2006 when he left number
18. Having no assets he had to start at
the bottom of the property ladder and took out a 100% mortgage. He bought a place close to his children so he
could play an active role in their life and he continued to do so to that day.
[142] As far as the tax credits were concerned he accepted that
overpayments were received. The tax
credit officer was made aware of them and efforts were made to retrieve the
funds. They told the pursuer, who was
dealing with the matter, that their policy was not to take back credits and
they advised her that in many cases family circumstances might change and
things might balance out over a period of time.
He was not ever asked to help with repayments of the tax credits since
leaving the house.
[143] He shared the economic burden of looking after the children. He
had had to provide a new house giving them continuity in their life. They could come and visit him without any
disruption and could play with the same friends and go to the same places. He
had them on a Tuesday night and took them to school on the Wednesday
morning. He also had them from lunchtime
on Saturdays until about 1900 hours on Sundays and the weekends were a time
when greater demands were made in terms of finance than school days. He also bought them clothes, not just for
school, and took them on excursions as well as other things like the swings and
the pitch and putt. They were completely
involved with him and he with them. The
level of contact he had with them was not his decision. That had been decided by their mother. He would be happy to have them more often. He was involved in education in the community
and had seen a lot of breakfast clubs. In his opinion children would be better
off having breakfast at home. His place
of work was close to the school and he could take the children there.
[144] He did seem genuinely to care for his children.
[145] As far as the CSA payments were concerned he admitted falling
behind and not being as up to date as he could be. He told the CSA earlier this year that his
employment conditions were to change imminently. They had been looking for information about
the changes and he could not give them it until he was on the payroll.
[146] In cross-examination he agreed that he ceased to make payments to
the CSA in September 2007. He was in
full-time employment at that stage without any offer of employment in
January. He continued in arrears between
September 2007 until about the beginning of May 2008.
[147] It was put to him that the arrears were for the period up to
September 2007 but he could not confirm that.
He had not been asked for any further payments. He agreed however that he had been in
arrears.
[148] It was suggested that as a result of this the pursuer had had to
bear the burden of caring for the children and he said that it was not the
whole burden. She did have the burden
when the children were with her but he was taking the children and bought
things for them such as clothing etc.
[149] He agreed that he was assessed as having a liability to pay £75
per month for the children. As far as
the 100% mortgage was concerned he said that he had no funds to put into the
house so that was why 100% was borrowed.
90% was borrowed from a mortgage company and he obtained a loan of
£20,000 as a deposit from his sister.
The property was bought in 2006 for £165,000. He was not able to say what multiplier was
applied to his salary. He went to a
mortgage broker, who told him that there were companies which dealt with people
employed on a contract basis, as he was.
He was told by the broker that three times one's salary was available
but a lot of companies based their lending not on a multiple but on credit
rating and some were willing to take greater risks than others. The loan of £145,000 which he received from
the building society was far in excess of three times what he earned. He did not earn £48,000 a year.
[150] He accepted that as a couple they were in receipt of over
payments of tax credits. He accepted
that he had an obligation to repay it and that the overpayment was applied to
family purposes including looking after the children and himself.
[151] It was suggested that none of the evidence which he had given
about the improvement to the flat was put to the pursuer and he accepted that
he did not mention the tiles or the decoration.
[152] He agreed that a builder, one Alvin Robertson, who was the step
father of a friend of the pursuer's, carried out the alterations. He agreed that the pursuer took out a loan of
£23,000 whereas the purchase price of the property was only £18,500. It was put to him that the balance of the
loan was to be used to pay for the renovation and he said that some of the
renovation was met by that but other items required to be paid for.
[153] The loan was in the pursuer's name. The parties had discussed taking title to the
property in joint names but that never came about.
[154] He made contributions for household bills and the mortgage as
well as for decoration etc. He was not
living anywhere else at the time. He
agreed that he had an obligation to keep a roof over his children's head as
well as his own and that the mortgage payments were necessary to achieve that. He was asked why he did not regard them as
alimentary. He said that he regarded a
mortgage as a long term investment whereas rent would be alimentary. He agreed that if the mortgage payments were
not made the building society could have repossessed the property and that he
paid the sums to ensure that this did not happen. He said that they had chosen to have children
and they needed a larger house. That was
why the loan of £23,000 was taken out.
He pointed out that the value of the property at 18
Main Street had gone up considerably and in this connection
he referred to 6/18, a letter from a Mr Young, a financial consultant,
setting out a mortgage illustration which, he said, gave a value of £200,000
for the property as at 6 March 2008. He said that that was far in excess of the
cost of the property. He said that they
could have kept the one bedroomed flat.
It was put to him that the mortgage obligation was taken on by the
pursuer alone and that he made the repayments in order to keep a roof over
their heads. He said that he also sold
his flat in West Park Place. He had had a mortgage since 1993. It was suggested that he sold the flat and
used the money to buy a new car. He said
that the Golf was not safe, not being roadworthy and was effectively given away
for £100. The Nissan which the pursuer
owned was not safe for a child either.
[155] He disagreed with a suggestion that he simply fancied a new car
and bought it with a spare couple of thousand pounds which he had.
[156] As far as his qualifications were concerned he agreed that he had
done around two years of the course and that the dissertation was
outstanding. It was put to him that he
was in a position to receive a diploma and he said that in order to be entitled
to that one had to do a report. That was
roughly half the length of the dissertation so he was just as well waiting to
do that. It was suggested to him that
the purpose of getting the extra qualification was to make him more marketable
in the employment system and he agreed with that but said that he wanted to
provide for his family. He would be able
to have paid summer holidays and take the children with him.
[157] As it stood he did not have the benefit of a full-time job as yet
but he hoped that matters would be finalised very soon. He would receive pension entitlements, paid
holidays, fitness benefits and flexi-time.
When one was on a contract there was always a risk. That was alright for a single person but not
when there were children involved. There
could be problems for example if he became ill.
He did want to increase his marketability but the reason was so that he
could provide for his family and himself as part of that family.
[158] He had not made the CSA payments because he had had cash flow
problems. If his mortgage payments had
not been met on time then that would have put him into arrears and caused problems
with his lender. He was currently out of
his depth.
[159] He did not think that the children should suffer but it was put
to him that that was in fact what happened.
He said that when one had financial problems one had to prioritise. It was important for him to keep 26
Main Street so that the children had a house where
they could come to stay with him.
[160] He accepted that he attended the library at weekends for up to
four hours at times when he was studying.
He also studied in the evenings but said that the children were in bed
at that time. He did not study every
weekend but when examinations were coming up.
It fluctuated throughout the year.
[161] In any event, these study periods at the weekends were the four
hours he had already mentioned. He tried
as hard as possible to work up to 35 hours from Monday to Thursday. It was put to him that through all this the
pursuer was looking after the children and keeping house. He said that it was a case of managing time,
leaving for work earlier and starting earlier.
That all took place over five to six months. The course did not run from 12 December until
the middle of January. In the period
when he was studying he made a lot of sacrifices himself in terms of time
management in relation to other activities and socialising.
[162] It was put to him again that the pursuer had to take up the
strain of looking after the children and the house and he said that Mr Hayhow
was missing the point. If he started
work early in the morning that was him managing his time. In the evening the children were in bed by
7.30 or 8 and he was studying then. In
that case he would have been in the house and the pursuer had free time which
enabled her to go out.
[163] He said that during the week from Monday to Friday there was no
requirement for her to look after the children and the house on his behalf,
although there was at weekends when he was studying in the library. He reiterated that when he was studying in
the evenings he was in the house and the children were in bed.
[164] He accepted that the pursuer's father had assisted to a large
extent with the care of the children and had not sought payment. He was asked if he accepted whether the
pursuer would be able to work the hours she did without that assistance and he
said that he was able himself to take the children to school thus freeing up
time for her.
[165] He was asked if he accepted that child care might cost money if
Mr M could not assist. He said that he
would like to have a say in that. He was
asked if there was any reason why Mr M should be bearing the expense of the
child care and said that he had done it willingly and regarded it as a privilege. He was not saying that Mr M should do
it. If he decided not to, then all
options would have to be considered, including putting his own hand in his
pocket and paying for it. He reiterated
that he could take the children to school and pointed out that he had parents
as well. He had the children on
Tuesdays, Saturdays and Sundays and that was all the time he was allowed. He would take them for longer if he could and
he said that they had demonstrated that they could be flexible.
[166] It was put to him that the flexibility was all one way such as
when he wanted to go to Glasgow on a Wednesday.
That was merely an example which he had given, he said, and the
flexibility worked both ways.
[167] Following cross-examination he said that he wanted to make the
point that it was the pursuer who applied for the extra mortgage and it was him
that met all the repayments. It was the
pursuer that was left now with a property worth £200,000 which was worth around
£80,000 before. She had therefore had
all the financial benefit. He had made
the investment and received nothing for it.
Submissions for the Pursuer
[168] Mr Hayhow invited me to
sustain the first and second pleas-in-law for the pursuer and grant decree for
£50,000 in terms of the first conclusion, under section 28(2)(a) of the
Family Law (Scotland) Act 2006 and for £20,000 in terms of the second
conclusion, under section 28(2)(b) of the Act.
[169] He said that the Act came into force on 4 May 2006 and created an entirely new regime
for cohabiting persons to make claims for financial provision on
cessation.
[170] He understood that there was one case at avizandum where the Lord
Ordinary had to decide on the date of cessation but he was not aware of any
other authorities on the matter. He did
not think that foreign authorities would be of any assistance but there might
be some apparent analogies in the Family Law (Scotland)
Act 1985.
[171] He drew my attention first of all to section 25 of the 2006 Act
which defined cohabitant. It was not in
dispute in the current case that the parties were cohabitants and I need not
rehearse that section.
[172] Two types of orders could be made under section 28 where
cohabitants ceased to cohabit, as had occurred on 24 May 2006. The
first order was under section 28(2) (a) and the second was under section 28(2)(b). Those, and Sections 28(2)(c) and (3), are in
the following terms:
"28(2) On the application of a cohabitant ("the applicant"),
the appropriate court may, after having regard to the matters mentioned in subsection
(3) -
(a)
make an order requiring the other cohabitant ("the
defender") to pay a capital sum of an amount specified in the order to the
applicant;
(b)
make an order requiring the defender to pay such amount
as may be specified in the order in respect of any economic burden of caring,
after the end of the cohabitation, for a child of whom the cohabitants are the
parents.
(c)
make such interim orders as it thinks fit.
(3)
Those matters are-
(a) whether (and, if so, to
what extent) the defender has derived advantage
from contributions made by the applicant;
and
(b)
whether (and, if so, to what extent) the applicant has
suffered economic disadvantage in the interests of-
(i)
the defender; or
(ii)
any relevant child. .
[173] Section 28(9) defines a child as a person under sixteen years of
age and provides that "contributions" includes indirect and non-financial
contributions (and, in particular, any such contribution made by looking after
any relevant child or any house in which the parties cohabited); that "economic
advantage" includes gains in (a) capital, (b) income and (c) earning capacity;
and that "economic disadvantage" shall be construed accordingly.
[174] Section 28(10) provides for the circumstances in which a child is
"relevant" but that is not an issue in this case.
[175] Section 28(4) provides as follows:
"In considering
whether to make an order under subsection (2)(a), the appropriate court shall
have regard to the matters mentioned in subsections (5) and (6)."
These subsections are in the
following terms:
"(5) The first matter is the extent to which
any economic advantage derived by the defender from contributions made by the
applicant is offset by any economic disadvantage suffered by the defender in
the interests of -
(a) the applicant; or
(b) (any relevant child.)
(6) The second matter is the extent to which
any economic disadvantage suffered by the applicant in the interests of -
(a) the defender; or
(b) any relevant child, is
offset by any economic advantage the applicant
has derived from contributions made by the defender."
[176] Counsel submitted that these provided for a balancing exercise
and it was only when the court was satisfied that there was an imbalance in
favour of the pursuer that an award could be made under section 28(2)(a).
[177] It was noteworthy, however, that section 28(4) did not apply to
an order under subsection 28(2)(b), so in considering whether to make an order
under subsection 28(2)(b) one had to have regard to subsection (3) but not subsections
(5) and (6).
[178] The Child Support Agency dealt with questions of aliment as far
as the needs of a child were concerned.
28(2)(b) was directed towards the cost to the party looking after the
children as opposed the costs of the children as it were.
[179] For example if a child cost £20 a week to maintain and a person
looking after the child had given up employment worth £100 a week then the
latter was the figure to which regard had to be paid. That may or may not be
right depending on the circumstances but I will say more about it later. As it
happens, it was not the approach adopted in this case.
[180] In dealing with an order under section 28(2)(b) the court simply
had to look to see if an economic burden had been identified. No balancing exercise was to take place.
[181] Mr Hayhow pointed out that in divorce actions the court had to
proceed by reference to the resources of the parties but there was no such
qualification in the 2006 Act. This
might be thought to be an obvious flaw in the legislation but the 2006 Act did
not provide a whole scheme of division, unlike the 1985 Act.
[182] In the absence of reference to resources the legislation on the
face of it did not restrict the order by reference to ability to pay.
[183] In this case there had been little evidence about resources. There had been evidence from the defender
that his salary was less than £48,000 but he had not raised the question of
resources. The pursuer had not sought to
obtain information by way of Specification of Documents for example but she was
not obliged to raise that question. Whatever the pursuer's obligations, I have
some difficulty with that submission and I will revert to the point in due
course.
[184] There was then some discussion as to whether an order could be by
way of periodical payments. That was not
a matter which had to be decided at this stage in view of the orders which were
sought so I make no comment on it, other than to say that at first blush the
Act appears to provide for the payment of fixed amounts, albeit payment by
instalments is possible under Section 28(7)(b).
[185] My attention was then drawn to the 1985 Act and in particular to
parts of sections 9(1), 9(2) and 11 thereof.
Mr Hayhow submitted that 28(2)(a) and (b) had certain similarities to
these provisions.
[186] The provisions of the 1985 Act to which Counsel referred are as
follows:
"9.-(1) The
principles which the court shall apply in deciding what order for financial
provision, if any, to make are that-
(a) the net value of the matrimonial
property should be shared fairly between the parties to the marriage or as the
case may be the net value of the partnership property should be so shared
between the partners in the civil partnership;
(b) fair account should be taken of any
economic advantage derived by either person from contributions made by the
other, and of any economic disadvantage suffered by either person in the
interests of the other person or of the family;
(c) any economic burden of caring,
(i) after divorce, for a child of the
marriage under the age of 16 years should be shared fairly between the persons...
(2) In sub-section (1) (b) and section 11 (2)
of this Act -
'economic
advantage' means advantage gained whether before or during the marriage or
civil partnership and includes gains in capital, in income and in earning
capacity, and 'economic disadvantage' shall be construed accordingly;
'contributions'
means contributions made whether before or during the marriage or civil
partnership; and includes indirect and non-financial contributions and, in
particular, any such contribution made by looking after the family home or
caring for the family....
11-(1) In applying the principles set out in section
9 of this Act, the following provisions of this section shall have effect.
(2)
For the purposes of section 9(1)(b) of this Act, the court shall have
regard to the extent to which -
(a) the economic advantages or disadvantages
sustained by either person have been balanced by the economic advantages or
disadvantages sustained by the other person, and
(b) any resulting imbalance has been or will
be corrected by a sharing of the value of the matrimonial property or the
partnership property or otherwise."
[187] That, however, as Mr Hayhow had said already, had to be seen in
terms of a whole scheme of division, unlike the provisions of the 2006 Act, and
the requirement to share the burden fairly was not something which appeared in
the 2006 Act, which did not look at the wider context of the division of
property. I am bound to say that I doubt
if the intention of the Scottish Parliament in enacting the 2006 legislation
was that the burden should be shared unfairly. Furthermore, sections 26 and 27
appear to envisage at least a partial scheme of division.
[188] Reference was then made to subsection 11(3)(a), (b) and (f) of
the 1985 Act, which Mr Hayhow said reflected some of the relevant factors in
the current case. These subsections run
as follows:
"11 (3) For the
purposes of section 9 (1) (c) of this Act, the court shall have regard to -
(a) any decree or arrangement for aliment of
the child;
(b) any expenditure or loss of earning
capacity caused by the need to care for the child;......
(f) the availability and cost of suitable
child-care facilities or services."
[189] It was submitted that section 11(3)(a) was relevant. It was
accepted that there was an order made by the CSA for aliment which had fallen
into arrears and I should have regard to the fact that the CSA assessment was
not being adhered to. That was because
when one was looking at the whole economic burden of child care one was
assuming that aliment was being dealt with.
The economic burden borne by the party was different. If aliment was not being paid then the burden
on the party with whom the children were living was increased and aliment came
back into the case. Mr Hayhow
agreed, however, that there was a problem with double jeopardy in this
regard. That was because arrears could
be paid up. If I was satisfied that
arrears were likely to be met then I should leave this element out of
account.
[190] As it happens I do not think it appropriate to take account of
the CSA position. That body is in a position to enforce the payment of arrears
and I consider this aspect of the case to be irrelevant.
[191] Section 11(3)(b) was relevant under the 1985 Act and it was also
relevant here. There was on the evidence
a loss of earning capacity suffered by the pursuer and expenditure caused by
the need to care for the child albeit some of that burden was borne by the
pursuer's father.
[192] Section 11(3)(f) was also relevant because in the current case one
should be considering what child care
facilities or services were available as well as their cost.
[193] No other particular factors came into play.
[194] While there was a sort of tick list in the 1985 Act the factors
therein were not specifically referred to in the 2006 Act. The earlier Act could be looked at as
guidance to some extent but one had to look with great care at cases under that
Act. Cases under section 9 might provide
some examples of how the 2006 Act could be applied but Mr Hayhow did not intend
to refer to any authority, nor did he. I regard that as unfortunate.
[195] He turned then specifically to the order sought under section
28(2)(a). He said that on the evidence
the defender had enjoyed at least four instances of economic advantage from
cohabiting with the pursuer.
[196] In the first place he had his house and children looked after
free of charge by the pursuer over the eight years of the parties'
relationship. That had allowed him to
continue in his career and to develop it.
[197] In the second place he had been able to improve his earning
capacity as a result of the cohabitation in terms of his additional qualification. Mr Hayhow conceded that the course was only
half way through when the parties separated but on his own admission the
pursuer assisted him by allowing him to concentrate on his studies. She was still in fact assisting him even
though the parties had separated by looking after the children while he
studied.
[198] The defender had accepted that the purpose of obtaining the extra
qualification was to improve his earning capacity (albeit in order that he
could provide for his family and himself) and very soon he would be in a
position to enjoy the benefits of that in terms of paid holidays, pensions,
flexi- time etc. That was a significant
advantage which was likely to develop the longer his career went on.
[199] In the third place the defender was relieved of his
responsibilities for payment of a mortgage because he was living in the
pursuer's house. It was not disputed
that he received the rent from his own property until it was sold. That sale took place in October 1998. Mr Hayhow accepted that there was no evidence
how much the rent was.
[200] At the cessation of cohabitation the defender no longer had a
mortgage.
[201] During the course of cohabitation he had discharged a debt over West
Park Place (although we did not know how much that
was) and he did not have any debt at the end of the cohabitation.
[202] The flat was fully furnished when he moved in. Over the period of the cohabitation a number
of things were gifted like carpets but the only thing coming from him was a
sofa. The defender had the economic
advantage of living in this fully furnished flat and that was a benefit, albeit
difficult to quantify.
[203] In the fourth place was the overpayment of tax credits. There was no dispute about the over payment
and the defender accepted his obligation to repay them. The easiest way of resolving this was simply
to split the liability which would result in a payment by him of £2,555.
[204] Mr Hayhow then turned to look at the economic disadvantages
suffered by the pursuer in the context of the section 28(2)(a) order. The principal disadvantage was the
restriction placed on her income and earning capacity because she gave up her
work to look after the children and her ability to work was restricted by child
care considerations.
[205] There were basically three heads of loss. The first of these was wage loss to date from
the period when she was either not working or working part-time. That had been the position since December
1998 and I should have regard to the document produced by Caroline McCleery
setting out her actual and potential income.
[206] In the second place there was the loss in respect of the increase
in value of her pension fund. The
figures were to be found in 6/24, Mr Duckworth's calculations, and
Mr Hayhow accepted that the first figure of £15,897 should be deducted
therefrom since it covered a year with which we were not concerned.
[207] Mr Duckworth's methodology was not challenged and I should accept
the figures which he provided.
[208] In the third place there was the loss of opportunity to advance
her career and improve her earning capacity as a paralegal.
[209] I was invited to have regard to the evidence of Caroline McCleery
and Mr Valente as well as the document to which I have already referred,
number 6/35.
[210] The difference in the figures between actual and potential
earnings was £117,707 if she had simply carried on on a full time basis. I was invited to take a broad brush approach
as to what she might have earned as a paralegal. There was some evidence as to what the
difference was in 1998 (£15,000) for a legal secretary and £18,000 for a
paralegal and as to the position now (£20-22,000 for a legal secretary and
£28-32,000 for a paralegal.) I asked
whether, as far as the pension was concerned, I should simply take the figure
for the loss and proceed as accords or should I make some deduction due to the
fact that the pursuer herself owed obligations to look after the children. I was invited not to do that in considering
an order under section 28(2)(a). In
looking at advantages and disadvantages one had to carry out a balancing
exercise, the purpose being to balance things fairly as far as possible. Counsel was not saying that I should simply
award the full sum of the pension loss to the pursuer. I had to take into consideration the fact
that the defender had provided for the pursuer over the piece. The pension was an identifiable loss clearly
established as arising during the cohabitation and as a result of it. Nonetheless it had to be balanced as between
the parties looking at the whole circumstances.
Section 11 of the 1985 Act provided for the court to take into account
all the other circumstances of the case and Mr Hayhow submitted that I would
have to do the same. The 2006 Act could
not operate in a vacuum.
[211] As far as the difference between the earnings of a legal
secretary and a paralegal were concerned the evidence was that in 1998 it was
around 20% (£18,000 as opposed to £15,000) and nowadays it was around 50%.
There were of course a number of variables as to when exactly, if at all the
pursuer would have taken up employment as a paralegal. Mr Valente said she was ready to do it
although she would not necessarily have obtained a job immediately. A colleague had been employed in that
capacity from January 2000. The pursuer,
on the evidence, was someone who was well thought of. A broad approach had to be taken. It was to be noted that if she had achieved
employment as a paralegal then her pension contributions would have been increased
also.
[212] He repeated what he had said about the tax credits being divided
in two.
[213] He submitted that the financial contributions made by the
defender were essentially alimentary. If
the defender was discharging an obligation to support himself and the children
then that should not be regarded as providing a significant advantage to the
pursuer. I should consider to what
extent payments were made for the defender himself and the children. The payment had been made to provide a roof
over his head and the childrens head but the pursuer was still left at the end
of the day with the debt.
[214] There were two loans, one for £26,000 and one for £23,000. At the end of December 2006 the amount
outstanding was nearly £44,000.
[215] While there had been a reduction in the overall debt, depending
on how one looked at it, there had in fact been an increase since the debt was
only £26,000 at the start of the cohabitation.
I could not take any account of the defender's suggestion as to the
value of the property. 6/18 was not
spoken to by its author and in any event merely supplied an illustration. It was apparent from the box which referred
to a purchase price or valuation of £200,000 that no valuation had been carried
out on the property. What was said is as
follows:
"The valuation
that will be carried out on the property and changes to any of the information
you have given us could alter the information in this illustration."
Accordingly there was simply no
evidence as to the property's value. It
would have been open to the defender to establish the value of the property in
evidence had he chosen to do so but he had not.
[216] It must be said that the same applied to the pursuer, who was
legally represented. I regard this as a serious omission. There was evidence that
the value of the second loan exceeded the purchase price of the office, the
remaining money being put towards the renovation of the premises. This loan was a debt and I simply could not
take account of any purported increase in value of which I had heard no
evidence. I think that this lacks
candour.
[217] There had been evidence that the loans were partly based on
endowment and partly repayment. 6/14 and 6/15 were the documents which dealt
with the endowment policies and Mr Hayhow submitted that these matters
were broadly balanced and effectively should be left out of account.
[218] Assuming that the mortgage was on an endowment basis then all
that was being paid was interest and the capital debt remained. Unfortunately there was no evidence as to
what part of the loan was covered by the endowment and what part was not so
this was fairly speculative.
[219] None of the defender's evidence about his contribution to the
renovation of the property was put to the pursuer. She could have answered any questions about
that. In any event it had been accepted
that the pursuer had employed builders to carry out the work and the loan was
greater than the purchase price in order to pay for it. Even if the evidence about the defender's
activities were accepted they could not be held to be any more than incidental.
[220] Mr Hayhow said that he was not in a position to say that
particular figures could be reached but submitted again that a balancing
exercise was required. The balance
favoured an award under section 28(2)(a) particularly in relation to the
pension loss.
[221] I questioned whether the award should reflect the actual loss of
the pension or some notional sum which could be invested to produce the same
figure as the loss at the projected retirement date. Mr Hayhow submitted there was simply no
evidence about that.
[222] He then turned to section 28(2)(b). On the evidence the burden of
child care had fallen on the pursuer.
She could only discharge it by relying on her father. It was unfair to expect that to continue with
the defender escaping his responsibility.
[223] I queried whether there was an economic burden on the pursuer
since her father was assisting her with child care. The burden seemed to be falling on him rather
than her. His position was that this was
precisely the type of situation with which section 28(2)(b) was designed to
deal. It was simply not fair for Mr M to
have to undertake a burden which ought to be borne by the defender. If he made the requisite payment then the
pursuer could release her father from his responsibility either by paying for child
care herself or by remunerating him for his time and expenses. I asked what would happen if a payment was
made and her father nonetheless carried on.
Could the payment then be regarded simply as a windfall? He said that according to the evidence there
might be difficulties with a clash between his teacher training
responsibilities and his child care activities.
Furthermore his health might not allow him to continue. If money were paid by the defender and
Mr M carried on then he would be the one providing the windfall. The person who should be discharging the
burden was the defender.
[224] It was no answer for him to say that he would take the children
for longer. He said that at present the
parties were satisfied with the contact arrangements although I queried whether
that was entirely so on the evidence.
Mr Hayhow said that the defender had suggested he could take the
children for breakfast for example and take them home from school but if he was
dissatisfied with contact the remedy lay in his own hands.
[225] Furthermore, if he were to aliment the children in kind for
longer periods that might be a matter for the CSA.
[226] In any event I could not simply deal with the matter on the basis
that the defender was prepared to exercise more contact. That was a matter which could only be decided
in its proper context and having regard to the best interests of the children.
[227] I consider that that submission is well founded.
[228] As far as the costs of child care were concerned I was referred
to 6/21, the document relating to the costs of breakfast clubs and after school
clubs. I would have to have a look at
that carefully and make relevant deductions for times when the defender was
looking after the children.
[229] The children were on holiday for around eleven weeks on the
evidence and one had to look at the costs of holiday clubs. A broad approach was again required since
there would be occasions when the children would not want to go to the holiday
club and would rather be with their friends.
Furthermore there would be periods when they were with either parent or
grandparents.
[230] A figure of around £4,000 per annum was suggested as
appropriate.
[231] I would have to consider a multiplier according to
Mr Hayhow. The children would have
to be cared for until sixteen years of age which was eleven years off for A and
seven for M. (The figure is nearer ten
years for A). They would obviously require less care as they grew older. If a lump sum was paid then the pursuer would
have the advantage of obtaining interest on it.
[232] He suggested a multiplier of five, which would include an element
of the cost of child care from the date of the separation until now.
[233] I questioned whether I could have regard to any child care costs
from that date since I had heard no evidence about it. The only evidence I had heard about that was
that the pursuer's father had been looking after the children following the
cessation of cohabitation, at no cost.
[234] It was submitted that that was nonetheless a burden and should be
reflected in the award.
[235] A payment of £20,000 was sought.
[236] I was invited to follow the normal rule that expenses should
follow success.
Submissions for the defender
[237] In reply Mr S largely
repeated some elements of his evidence.
As far as the valuation was concerned he invited me to have regard of
6/7 of process but I told him I could not do so since no-one had spoken to
it. I had in fact pointed out to him
during his evidence that if he wished to refer to a document he would have to
speak to it.
[238] He repeated that the pursuer could have attempted to become a
paralegal as early as 1996 and she had not done so. The question of her qualifying as such was
hypothetical. The opportunity to do so
still existed but she had not taken it up.
[239] He repeated what he had submitted to Mr Duckworth in
cross-examination and what he had said in evidence about the pension
calculation. He referred to the
legislation in 2006 and the fact that before that a person had to be working in
order to contribute. Mr Duckworth's
figures were based on an employee working five days a week full-time and they
were invalid. There was evidence that the
pursuer kept two ponies, chickens and dogs.
If that was a priority rather than her pension then that was a matter
for her.
[240] She had never shown any inclination to take up the post of
paralegal despite VMH's policy of encouraging this. It was hypothetical to say that she would get
a job in the firm. That therefore should
be discounted also. As far as her loss
of earnings from reduced hours was concerned, it had been put to her and to her
father that she could increase her hours by taking up the option of the child
care which he was prepared to undertake. Caroline McCleery, he said, had
confirmed that a former colleague with a young child had become a paralegal.
[241] It had been suggested that the defender had been economically
advantaged but that he had not been. That was not the case. He was in debt. He
would not be representing himself if he had the funds to pay for a lawyer. He had no funds to cite witnesses. He submitted that when he was being
cross-examined Mr Hayhow had argued that he had no option other than to pay the
mortgage in order to keep a roof over his head but that now that he had a
mortgage that was a matter for his choice.
He had now opted to pay a mortgage rather than use the money for other
things and the same applied when he was at his previous address. He opted to pay the mortgage then and was
doing so now.
[242] It was not any advantage that he was now a young single man. He had commitments and had become a father
because he wanted to.
[243] There was some speculation about the rent for West
Park Place.
It had been suggested that both parties had agreed that the rent had
been retained by him. That had not been
put to him and he did not agree with it.
Any money received by the parties was regarded as being in the one pot. The fact he was earning more than the pursuer
was irrelevant to him. They were living
as husband and wife. He had not yet
taken up his new position so he did not yet have the advantages of flexi-time,
pension etc. That had not been done
because he did not have the documents which he had requested for his previous
address. They only arrived a couple of
weeks previously. He was not earning
anything like £48,000 a year. Even in
his new position he would only be receiving around £32,000 a year. Even then he would still be struggling to
meet the payments on the house. That was the first time he had mentioned his
prospective salary, no evidence having been given about it. There was never any
indication what his current income was.
[244] As far as child care was concerned he said that his grandparents
took care of their grandchildren and his parents did the same for a
nephew. His father had four
grandchildren and set aside money for them each month. Again there had been no evidence about
this. There was room for both sides to participate.
[245] As far as mortgage payments were concerned he said that when he
was at his previous address the payments were purely an advantage for Ms
M. Her property had gone from a one
bedroomed flat to a three bedroomed flat which was obviously a considerable increase. The difference between the mortgage as it was
in 1998 and now was insignificant compared to the difference in the value of
the property.
[246] The mortgage used to be endowment based but was changed to
repayment (there was no evidence about exactly when this happened).
[247] It was said that the economic burden of the care of the children
was not disputed. He had however
disputed it and he also shared it. That
burden required that he provide a roof over his head for the children as well
as for him. He provided a bedroom and
beds for them and everything they needed while they were in the house. He had to pay for the mortgage because he
needed a roof for himself and the children.
[248] He also submitted that there was no breakdown of the claim for
£50,000 or for that matter the claim for £20,000. A figure of £4,000 per year had been raised
but that was not substantiated in the evidence.
[249] In any event he did not have any resources to meet these claims.
[250] As far as expenses were concerned he had no option but to defend
the action. He did not see why he should
have to pay expenses.
[251] He accepted his obligation to repay a share of the overpaid tax
credits.
Discussion
[252] I was informed at the outset
by Mr Hayhow that this is the first time that the financial provisions of
the 2006 Act have been judicially considered.
That is daunting enough in itself but I have to confess that in
approaching this matter I feel at a distinct disadvantage. In the first place, while I mean no
disrespect whatsoever to the defender, it would have been helpful to have the
benefit of submissions from counsel on each side. Secondly, as may appear from my narrative,
the evidence as to the parties' financial positions was, on a number of
important matters, vague, to say the least.
[253] It seems to me that when one is discussing economic advantages
and disadvantages the greatest care should be taken to provide the court with
as much information as possible. I was
certainly provided with details of the pursuer's income and pension position as
well as a snapshot of the mortgage position.
In addition I was provided with costings in connection with
extra-curricular activities at school.
[254] I am afraid that I do not understand why it was not thought
appropriate by those advising the pursuer to obtain and lead evidence of the
value of the property in which the parties cohabited. This is obviously a substantial asset to
which there is no doubt the defender contributed and the failure to provide
evidence as to its value is a significant one.
[255] Furthermore, I do not quite understand why it was not thought necessary,
even if no evidence was sought by way of specification of documents, to
question the defender about his income rather more closely than was done. I did not feel that it fell upon me to
undertake this questioning myself. To
some extent the defender can be excused as not being legally qualified.
[256] I have to proceed as best I can on the evidence and submissions
presented to me but I am afraid that my own shortcomings in dealing with the
matter will be amplified by the omissions to which I have referred and this
case may prove to be of less assistance to others who follow than it might
otherwise have been.
[257] As far as the evidence generally was concerned, I found all of
the witnesses generally credible and reliable.
There were perhaps variations in degree and emphasis as between the
pursuer and the defender but I did not think that either of them were
deliberately overstating his or her case or attempting to mislead, other than
the fact that the defender's evidence as to his income did not display the
candour which one might have expected.
[258] All of the pursuer's witnesses were plainly credible and reliable
and their evidence was supported by the documentary productions. I have to say that in particular I found her
father to be, if I may say so, a delightful individual who was plainly thrilled
to be able to assist with his grandchildren and was obviously willing to carry
on doing so as long as he was able.
[259] Many of the salient facts are not substantially in dispute but
there were a number of matters on which the evidence was quite insufficient,
although I can understand why that should have been so. It was not at all clear how much rental was
obtained by the defender from his flat and the position about the family car or
cars as well as the animals was not really quantified in financial terms. I can only take account of these matters
generally.
[260] I think it might be easiest if I approach the matter in the same
order as Mr Hayhow did. Before I do
that I think I ought to make one or two further general observations. In the first place it seems to me that the
discretion afforded to the court is very wide indeed. Some comparisons were drawn by Mr Hayhow
between the 1985 Act and the 2006 Act but the latter contains much more
material from which the intention of Parliament can be gleaned. It is not clear to me why some greater
concession to a concept of community property was not included in the 2006 Act,
(pace sections 26 and 27) but there
it is.
[261] Mr Hayhow indicated that it might be thought that the lack
of provision requiring the courts to have regard to resources was a flaw in the
legislation. Again I make no particular
comment on that other than to suggest that it might be that courts will be slow
to make an award which will plainly be unenforceable. Thirdly, while the courts are used to making
attempts to predict the future, for example in awarding damages in personal
injury cases, I am not entirely clear why it was felt that it was appropriate
for them to try to make such a prediction in relation to the cost of looking
after children. There may be some good
reason why periodical payments in respect of children, which could be varied
from time to time, were not thought to be appropriate but for the moment I
cannot think what that reason might be.
I am not aware of the courts having been inundated with applications to
vary periodical allowance or aliment for children when circumstances change so
I do not know what the difficulty is, or was thought to be.
[262] Section 28(2)(b) seems to me to have the potential for injustice
built in. It might be far better if
these matters fell within the ambit of the Child Support Agency to be
considered along with aliment or at least if the court were given the power
specifically to order periodical payments in respect of the costs of child care
which could be varied from time to time on a relevant change of circumstances.
[263] Be all that as it may, the Act stands as it does and so I must
deal with it.
Section 28(2)(a)
[264] The pursuer seeks payment of
a capital sum of £50,000, with interest.
In deciding whether or not to order such payment I have to carry out a
balancing act based on the evidence which I heard, such as there was. In doing this I think I will have to approach
the matter broadly, recognising that the contributions parties make to a
relationship cannot always be measured in economic or financial terms. Even those which can be so measured cannot
always be measured accurately. I do not
think that I can ascribe any particular figure to the rental from the
defenders' flat or to the evidence about the cars. Equally I leave out of account the horses and
other animals and the furniture. I do
not understand that any furniture was taken away and the position about that is
essentially neutral.
[265] I have already indicated that I take no account of the arrears of
child support. I am at something of a
disadvantage not knowing what assets each party now has, except in general
terms.
[266] The pursuer accepted that the defender contributed to household
bills and was the breadwinner when she was not working. When she was working she contributed to bills
and also put money into the bank, some of which went on her own pursuits.
[267] The defender made the mortgage payments after M was born and also
applied some of his money to his own interests.
I have little difficulty in accepting that this was the position.
[268] It must be a very unusual relationship where parties, from day
one, account for every penny in order to know which of them contributed what
and this relationship did not fall into that category.
[269] As a starting point I think it appropriate to consider whether
there is any relationship between the provisions of the 2006 Act which are
under discussion here and those provisions of the 1985 Act to which counsel
referred.
[270] Plainly they come into play in a different way. As counsel submitted, the 2006 Act's
provisions do not appear within the context of a scheme of division of
property. The 1985 Act's provisions on the other hand, come into play where one
is considering what factors may justify a departure from equal division of
matrimonial or civil partnership property.
They seem, in other words, to be approaching the problem from different
directions.
[271] Does that mean that they fall to be construed differently? In my opinion the answer is no. In enacting the Family Law (Scotland) Act
2006, and in particular the sections under consideration, the Scottish
Parliament must have been aware of the 1985 Act and the way in which the
particular provisions I am discussing have been treated by the courts.
[272] The provisions, although not absolutely identical, are so similar
in my opinion as to make it clear, at least to me, that the Scottish Parliament
must have intended the courts to approach them in the same way.
[273] They must also have been aware of the treatment of the 1985 Act's
provisions in such cases as Loudon v Loudon 1994 SLT 351, Welsh v Welsh 1994 SLT 828, Adams v
Adams (No 1) 1997 SLT 144 and Ali v Ali (No 3) 2003 SLT 641.
[274] In delivering the Opinion of the Extra Division in Ali, Lord McCluskey said the following
at page 647:
"All that was
averred was that the respondent had given up work to look after the family and
to assist with the running of the farm, thus suffering economic disadvantage,
and that she was 'entitled to a fair sharing of the matrimonial property as
detailed above.' Such - fairly standard
- averments would not properly be prayed in aid to justify an unequal
distribution. These are exactly the
averments that a wife pursuer quite properly and routinely makes when she has
become the homemaker after marrying and has thus enabled the husband to
continue to be the breadwinner; the
making and proof of such averments is seen as justifying an equal sharing of
the matrimonial property even although the actual monies have been earned by
the husband and the properties and assets are in his name or in the name of a
firm or company in which he is the principal actor; in such circumstances, the equal distribution
of the matrimonial property is, in the absence of other special circumstances,
seen as fair. In this regard we refer to
the Opinion of Lord Osborne in Welsh
v Welsh, and, in particular, to
the passage at 1994 SLT, p. 835: 'I have
come to the conclusion, in the light of the facts which I have found and of the
foregoing arguments, that the net value of the matrimonial property available
in this case should be shared equally between the parties. The pursuer's argument to a contrary effect
was based upon the terms of s. 9(1)(b), in association with the provisions of
s. 11(2) of the Act of 1985. While it is
plain that the pursuer herself suffered an economic disadvantage in the
interests of the defender and her children, insofar as she gave up quite well
paid employment to look after her family, it appears to me to be equally plain
that she enjoyed certain associated economic advantages in the same situation,
in respect that she was subsequently maintained exclusively from the earnings
of the defender during the period in which she had no employment. Furthermore, in the allocation of matrimonial
property which I propose to make, she will enjoy the results of the mortgage
payments made exclusively by the defender during the period of time in which
she was not employed. It appears to me
also that, in consequence of the pursuer giving up her paid employment, the
defender himself sustained an economic disadvantage, in respect that he was
thus rendered the sole breadwinner for the family, assuming the responsibility
for maintaining, not only his children, but also the pursuer herself. In the whole circumstances I am unable to
decern any significant imbalance in the situation of the parties in relation to
economic advantages and disadvantages.
In these circumstances I see no reason, based upon s. 9(1)(b) to depart
from equal division'.
We also refer to
the similar treatment of a similar issue by Lord Gill in Adams v Adams
(No 1), at 1997 SLT p. 148."
[275] Of course in the current case there is no question of allocation
of matrimonial property or its equivalent allowing the pursuer to enjoy the results
of mortgage payments made by the defender but she does remain in a property in
respect of which he did make such payments.
[276] In Adams Lord Gill said the following at page
148:
"The pursuer next
relies on s 9(1)(b) (as read with s 9(2) and s 11(2).
She argues that
the defender has enjoyed an economic advantage in that he has been able to
further his career whereas she has prejudiced hers by bringing up the
children. I accept that the pursuer has
suffered an economic disadvantage in this respect. On the other hand in all the years during
which they lived together, the defender contributed more than the pursuer to
the household finances and during the period when she was out of employment, he
supported the family on his own. It is
not suggested that the defender ever failed to maintain the family in a good
standard of living. In my view this is a
counterbalancing consideration which I am entitled by
s 11 (2) to
apply. The pursuer's economic
disadvantage is not the worst that she could have suffered. She was able to return to her professional
employment soon after the birth of each child and she has for some considerable
time been in full-time pensioned employment and making her own contributions to
a top up pension. I distinguish this
case from a case such as Loudon v Loudon where the property was decided in
the proportions 55/45 per cent in the pursuer's favour largely on the basis
that the pursuer was untrained and had no pension and that there was a great
disparity between her assets and those of the defender (at 1994 SLT p
385C). I distinguish this case also from
McCormick v McCormick, where the wife was at a disadvantage in that it would be
difficult for her to gain employment at her age in her former profession (at p
10); and from Cunniff v Cunniff where the wife who received a
transfer order had not worked for over 20 years, had an earning power not
remotely comparable with that of her husband and, if not given the matrimonial
home, would not have been able to afford alternative accommodation (at
pp12-13). I conclude therefore that in
this case an unequal division in the pursuer's favour is not justified by s
9(1)(b)."
[277] In that case, of course, there was evidence that the defender had
contributed more than the pursuer to the household budget.
[278] In Loudon Lord Milligan
said the following at pages 384-385:
"I have
considered carefully counsel's submission on the question of the appropriate
allocation of the matrimonial property.
I am left in no doubt whatsoever that this should be an allocation in
which, in the whole circumstances, the pursuer receives more than 50 per cent
of the matrimonial property. I accept
the submissions by counsel for the pursuer in preference to those of counsel
for the defender on this matter. I find
that on the question of economic disadvantage the pursuer is left economically
disadvantaged to a material extent. It
is said by counsel for the defender that any economic disadvantage which the
pursuer may have is balanced by the advantage she has in having been married to
so successful a businessman. I do not
accept counsel's approach on this matter.
As already mentioned, it is clear that the defender was a successful
businessman throughout the parties married life together. While he was carving out a successful career,
and indeed supporting the pursuer and their daughter well, the pursuer was
looking after the house and their daughter over and above the parties'
respective care of each other. The
pursuer worked before the marriage but did not do so during the marriage. That she did not do so was not, I accept, due
to any absolute insistence on the part of the defender that she should not
work, but I interpret the evidence as indicating that he was content for her
not to work. The defender is now well launched
on a business career where he can command a high salary, currently apparently
some £58,000 after tax per annum. The
pursuer, on the other hand, requires to retrain in order to get back, as she
put it, on the employment ladder. This
she requires to do at the age of 45 years, which may well be problematical, at
least so far as ending up with a well paid job is concerned. The difference between her earning potential
now and what she would probably have been earning but for her marriage to the
defender cannot be calculated with any accuracy but I think it reasonable to
conclude that the pursuer has suffered a material economic disadvantage in this
connection."
[279] I think what these cases demonstrate is that each case has to be
considered on its own merits but that contribution by one partner or spouse who
looks after a house and or children can be balanced by the financial
contributions made by the other spouse or partner and vice versa. It may be that
in some cases, such as Loudon, it is
possible to decern a material disadvantage one way or the other but in other
cases it may not be.
[280] The fact that the 1985 Act and the 2006 Act approach the problem
from different directions does not, I think, affect the matter in
principle. Either factors balance out or
they do not. The effect of the balancing
exercise will of course lead to difference consequences. Under the 1985 Act the principle of equal
division may or may not be affected.
Under the 2006 Act the payment of a capital sum may or may not be
affected.
[281] In each case however, I think that the balancing exercise has to
be approached in the same way.
[282] As I have indicated, it is a pity that these authorities and
others possibly bearing on the subject were not debated before me.
[283] Having considered these matters, I now turn to the facts of the
case before me in so far as material and revealed in the evidence.
[284] I propose to consider the position of the pursuer first. It was said that the principal disadvantage
she suffered was the restriction placed on her income and earning capacity
because she gave up her work to look after the children and there were
basically three heads of loss. These
were wage loss, the loss in respect of the pension fund and the loss of
opportunity to advance her career and improve her earning capacity as a
paralegal.
[285] The wage loss is calculated with reference to 6/35 of process
which covers the tax years to 1988 and 2008 in other words from 6 April 1988 till 5 April 2008.
[286] The loss was said to be £117,777.
It seems to me however that the loss was crystallised as at the date of
cessation of cohabitation namely 24
May 2006. The figures for
the years to 2007 and 2008 (£17,003) should be deducted leaving a figure of
£100,774. There should be added on a
figure for the period from 6 April till 24 May
2006 which I calculate broadly as £1,100 so the gross loss is £101,874. In order to avoid double counting the pension
contributions of 5% should be deducted (£5,085) taking the gross salary lost to
£96,789. In my opinion one should be
dealing in net figures so I propose to deduct further from that a figure of, in
broad terms, one fifth, taking the net loss to £77,431.
[287] The pension calculations are slightly high, not being based on
the actual figures in 6/35, but the difference is not of major
significance.
[289] The pursuers stopped contributing when the first child was born, which
was in February 1999, and the first figure should be deducted, which leaves a
loss of £64, 721. Part of the figure to
December 2006 and the figure to December 2007 should also be deducted that is
£313 plus, say, five twelfths of £1,827 which is, say, £750, so £1,063 falls to
be deducted giving a figure for pension loss of £63, 658.
[290] I consider that the burden of cohabitation should be borne
fairly, although there is no provision to that effect in the Act, and I
therefore propose to cut these losses in half.
That makes the total financial loss £38,715 in respect of salary plus
£31,829 in respect of pension or a total of £70,544 which the pursuer would not
have suffered but for the cohabitation, or around £8,465 per annum considering
that the parties lived together for eight years and four months or
thereby.
[291] I will come onto the loss of potential salary shortly.
[292] What about the defender?
It is said by Mr Hayhow that he had had the house and children looked
after free of charge by the pursuer over the eight years of the parties'
relationship, which had allowed him to continue in his career and develop
it. Secondly, he had been able to
improve his earning capacity and thirdly he was relieved of his
responsibilities for payment of a mortgage because he was living in the
pursuer's house. There was reference to
the rental from his own property which he received but I propose to leave that
out of account.
[293] At the cessation of cohabitation the defender no longer had a
mortgage and he had no debt at all at the end of it. The flat was fully furnished when he moved in
and he had the economic advantage of living in this fully furnished flat. There was also the question of the over
payment of tax credits.
[294] His broad position was that the payment by the defender of
household bills including the mortgage etc was merely alimentary.
[295] That is a contention which I simply cannot accept. It ignores the fact that the pursuer and the
children had the benefit of these payments.
The defender was not living "rent free" as it were and was actually
paying for his upkeep while the pursuer and the children had the benefit of
that. While he was paying these bills
the pursuer did not require to meet them.
She accepted that he contributed to the household bills and was the bread
winner and that he made the mortgage payments after M was born. His evidence, which I accepted, was that the
income was pooled. Some of the money was
used for his own purposes and some of it used for the pursuer's purposes.
[296] I have not been given the benefit of exact figures but I would
not expect these. It is not at all clear
what precisely his salary was but it must have been a fairly significant one to
enable him to meet the various commitments and it is unlikely that his salary
was less than the pursuer's otherwise she would have gone out to work rather
than he.
[297] He must have had a fairly substantial income in order to obtain a
loan for the house which he purchased following the cessation of cohabitation,
that loan being 90 per cent of £165,000.
Accordingly I infer that his net salary must have been at least £17,000
per annum and was probably greater than that.
[298] There is no reason to think that the use to which parties put
money for their own support varied greatly as between them so broadly speaking
his contribution would have been, on these figures, at least twice the loss
suffered by the pursuer.
[299] Of course, as with the pursuer, he has to bear half of that loss
himself and in my opinion the figures at least even out.
[300] Accordingly there is no justification thus far for ordering any
payment by the defender to the pursuer.
[301] I will come back to the question of the house but in the meantime
I propose to deal with the loss of potential earnings on the part of the
pursuer and the potential increase in earning capacity on the part of the defender.
[302] I accept on the evidence that the pursuer would probably have
taken up the opportunity to study to become a paralegal and, on the evidence of
Mr Valente as to her capabilities, it seems to me likely that she would have
succeeded probably in or around 2000 or 2001.
[303] There remains of course the uncertainty as to whether or not she
would have obtained a position.
[304] I think it likely that at some point she would have done. That would have involved an increase in her
salary of anything between 20 and 50%.
[305] A broad axe approach must be applied to this and I propose to
adopt a figure of £5,000 per annum for four years amounting to £20,000 in
total.
[306] Again I will deduct one fifth for tax leaving a figure of £16,000
of which half is her responsibility. The
loss therefore I assess at £8,000.
[307] It is more difficult to work out a figure representing the
increase in value of the defender's earning capacity. I accept that the pursuer's efforts enabled
him to study and to go to the library at weekends but this was only for a
period of some six months.
[308] I accept that he has not yet completed the course but nonetheless
he is well on the way. In the
circumstances I propose to apply a figure of £2,000 to that, which I propose
simply to add to the £8,000 making a figure of £10,000 in respect of the
imbalance.
[309] Is it appropriate for me however to make an order for
payment? In the circumstances I do not
think that it is. That is for the
following reasons. There is no doubt that
the pursuer, at the end of the relationship, was left with a mortgage debt and
the defender did not have any until he purchased another property.
[310] However, he had no discernable assets. The pursuer, on the other hand, had the
property which was burdened by the debt.
The debt is doubtless greater than it was before the cohabitation
commenced but I have no idea what the value of the equity is.
[311] It might be one thing if the property which she owned all along
from beginning to end was burdened with a greater debt but in this case it is
clear that the parties purchased another property which was added to her
existing one, thereby creating a larger property. This property was disponed to the pursuer in
late 1998, nearly ten years ago.
[312] It may be argued that it was for the defender to raise this issue
but it seems to me that the pursuer has a duty to be frank in disclosing her
assets and it simply will not do to leave the court in the dark as to the value
of this substantial asset with which she has been left as a result of the
cohabitation.
[313] I appreciate that the loan was greater than the purchase price
but that does not alter the position.
[314] I leave out of account any question of improvements carried out
by the defender, none of which was suggested to the pursuer. Nonetheless, in the absence of evidence about
the value of the property which the pursuer now holds, albeit encumbered, I am
unable to say whether she has in fact been disadvantaged by the cohabitation.
[315] In these circumstances I do not think it appropriate to make any
award under section 28(2)(a), subject to the following.
[316] Mr Hayhow indicated that the endowment policies generally
balanced out and sought inclusion in any award of the figure of £2,555 in
respect of the tax credits.
[317] I am prepared to treat these as separable matters. Each had an endowment policy which was put
into joint names. As at the date of
cessation the defender's had a surrender value of £8,121.86 while the surrender
value of the pursuer's was £5,932.48.
That gives a total of £14,054.34, half of which is £7,027.17. It seems to me that the defender has lost and
the pursuer has profited by £1,094.69.
[318] He is due to make payment of £2,555 in respect of tax credits and
I think it would be fair to set one off against the other so that I will make
an order for payment of £1,460.31.
Section 28(2)(b)
[319] This section requires the court to indulge in certain speculation
as to the future. It is distinct from a
traditional award of aliment which could be varied from time to time as
circumstances changed and once again a broad axe has to be applied.
[320] Whether the appropriate measure is the cost, say, of childcare in
a nursery, for example, or the loss to a pursuer who had to give up a well paid
job in order to look after the children depends, it seems to me, on the
circumstances. In one case the cost of
child care might be greater than the loss of salary while it might be the other
way round in another case.
[321] I do not think that there is any duty to minimise loss in these
circumstances. It might well be thought
to be in the children's interests that their mother or father look after them
rather than a nanny or a nursery and if that caused a greater financial loss
then so be it.
[322] I do not consider it to be a problem in this case since Mr Hayhow
presented the loss on the basis of the costs of breakfast clubs, after school
clubs and holiday clubs and I think that that is a reasonable approach.
[323] I have to say at the outset that, while Mr Hayhow invited me to
include a figure for what had happened since the cessation of cohabitation to
date but I am not minded to do so. The
children, and indeed the parties, have been fortunate to have had the services
of a very caring grandfather who has not sought payment for his
assistance. The Act only speaks of an
"economic burden" and I do not think that this includes some notional economic
burden which was, in fact, never borne.
[324] That may be thought to be a flaw in the legislation.
[325] As I have indicated I have to look at this matter broadly. During the course of his evidence and
submissions the defender hinted that he could look after the children more
often but I am going to proceed on the basis that the current arrangements for
their care are satisfactory and will continue, at least so far as the parties
are concerned. In other words the
defender has the children at weekends from Saturday around lunchtime until
Sunday evening and also has them on Tuesday evenings until Wednesday mornings.
[326] As I indicated earlier, the pursuer's father is a most impressive
individual. He clearly loves the
children and, provided his health and work commitments allow, it is my opinion
that he will be delighted to carry on looking after them. He is 66 years of age and I think that it is
likely that he will be in a position to, and will in fact, look after them for
around another two years at least.
[327] I am also going to base my analysis on the costs of clubs as
presented to me.
[328] Mr Hayhow suggested a figure of £4,000 per annum with a
multiplier of five. That figure of
£4,000 was challenged by the defender as not being substantiated by the
evidence.
[329] I think that I will have to try to adopt a more analytical approach
than Mr Hayhow, remembering at all times that the question has to be
approached broadly.
[330] A child for the purposes of the Act is someone under 16 years of
age.
[331] Proceeding on the assumptions that there will be no economic
burden (other than aliment which is separately dealt with), that means that
from August 2010 M will have around four and a half years to go until he is 16
and A will have just over 8 years.
[332] As far as breakfast clubs are concerned I will look at the
position until M is 16 and then the position afterwards.
[333] I will assume that both children go to the breakfast club for 41
weeks per annum, there being 11 holiday weeks.
If both children went every day then the weekly cost would be £36.50.
[334] Assuming, though, that they will not be going for one day a week
(the Wednesday) I will calculate the figure by reference to the daily cost of
£3.80 per day. Multiplying that by eight
gives a figure of £30.40 per week or a total of £1,236.40 per annum. Multiplying that by four and a half gives a
figure of £5,563.80.
[335] After M is 16 it seems to me that A will be unlikely to go to
breakfast club at least all the time since her brother will possibly be able to
look after her in the mornings. This,
however, cannot be guaranteed. For all I
know her brother may go on to further education or may go into employment
himself. If, though, A carried on at
breakfast club for a further four days a week for a further three and a half
years at 41 weeks a year then the total would be £620 multiplied by three and a
half, in other words £2,170.
[336] Given that there are a number of contingencies, including the
fact that the cost of these clubs will undoubtedly rise, I am going to assume
that in fact A will attend the breakfast club when she might otherwise have
been looked after by her brother.
[337] As far as after school clubs are concerned, the list of fees
appears to indicate that these only relate to children in primary one to
primary seven which would, I think, take the children up to aged 12 or thereby
ordinarily. M will be 12 on 15 November 2011 and A on 3 September 2014. Therefore M will only be there from August
2010 for about six months and M for about four years.
[338] I am going to assume that they will attend every day other than
Wednesdays. Deducting three weeks
holiday for M, he will be there four days a week for around 23 weeks. It is not entirely easy to work out the daily
rate but I will proceed on a base figure of four fifths of the weekly rate of
£38, in other words £30.40. For the
second child it will be four fifths of £35.85 or £28.68 giving a total for 23
weeks when both children are there of 23 x £59.08 or £1,358.84.
[339] From then on I will assume that A is there for another three and
a half years at a weekly rate of £30.40 and for 41 weeks a year which will give
a total of £4,362.40.
[340] Therefore the total figure for after school clubs is
£5,721.24.
[341] One of the problems with this of course is that there is bound to
be some kind of cost for looking after the children between the ages of 12 and
16 during the school year. As has just
been seen the figure for three and a half years based on one child's attendance
at the after school club is £4,362.40.
The figure for four years would be proportionally higher.
[342] Of course one knows that when children are over 12 and under 16
they do not require as much looking after as they might otherwise do and will
be likely to go to friends' houses, to the shops, to football training and the
like.
[343] Nonetheless, I think that I must try to come up with some sort of
figure to reflect the economic burden of looking after them during these years,
other than aliment, and using the cost of after school clubs as a broad equivalent
(the total being over £9,000 for four years) I assess that sum as £6,000.
[344] Moving onto holiday clubs, I am going to approach this on the
basis of the children attending for seven weeks per year out of eleven. This will allow for their parents looking
after them and also for the fact that children are unlikely to wish to spend
all of their time in holiday clubs at the very school from which they are on
holiday. The figure of seven weeks may
be slightly higher than will turn out to be the case but it is likely that the
costs of the clubs will increase and again I can only approach the matter
broadly.
[345] A full week for each child will be £71.45 plus £69.30, that is
£140.75. For seven weeks that works out
at £985.25. For four and a half years,
until M is 16, that will be £4,433.62.
[346] I will assume that A carries on for another three and a half
years at seven weeks per annum at £71.45 per week. That figure amounts to £1,840.54, giving a
total for holiday clubs of £6,274.16.
[347] To sum up, I assess the costs of breakfast clubs at £7,733.90,
the cost of after school clubs at £5,721.24, with a further figure of £6,000
for the economic burden of looking after them between 12 and 16 in the
afternoons and early evenings, and in respect of holiday clubs the total is
£6,274.16.
[348] The grand total therefore comes to £25, 729.20.
[349] As I have indicated, there are a number of imponderables but I
have tried to take account of these as I have gone along and to offset the fact
that the children will not always be attending these clubs with the fact that
the cost of living is likely to rise.
[350] As I have tried to indicate already, it seems to me that the
economic burden of looking after the children has to be shared fairly.
[351] It may be that the defender will be earning more than the pursuer
but of course he is discharging part of his burden by looking after the
children on Tuesdays and for part of the weekend.
[352] In these circumstances I propose broadly to divide the figure in
two and to order payment by the defender to the pursuer of the sum of £13,000.
[353] That means that I am finding the defender liable to make payment
to the pursuer of a total sum of £14,460.31.
[354] I do not have any concrete knowledge as to the defender's likely
resources other than the reference he made to them during his submissions.
[355] I think it is apparent, though, that it might be unjust were I to
order payment other than by instalments or by some other means which might
spread the burden fairly.
Decision
[356] In relation to section 28(2)(a) I shall order payment of the sum
of £1,460.31 within three months of the date of extract, with interest at eight
per cent per annum from that date until payment.
[357] As far as Section 28(2)(b) is concerned, the costs of keeping the
children will, on my analysis, commence in around two years. I think it appropriate, however, that the
defender start payment as soon as possible.
I am going to order payment by instalments, and interest will run on
each instalment at the rate of eight per cent per annum until it is paid. If the defender pays on time then there will
be no question of interest.
[358] The first instalment will be due one month after the three month
period to which I have already referred and will be due on the last day of the
month and monthly thereafter on the last day.
[359] I do not intend that the instalments should be spread out over
the entire period between now and A's sixteenth birthday, since I think it
appropriate as far as possible to try to bring the economic aspects of this
relationship to an end, so I shall fix the instalments at the sum of £400.
[360] I do not think that I have any alternative but to find the
defender liable to the pursuer in the expenses of the action as taxed.
Decision
[361] I shall order the defender to make payment to the pursuer of the
sum of £1,460.31 in terms of the first conclusion of the summons, said sum to
be paid by the last day of the third month after extract with interest thereon
at eight per cent per annum until payment; (2) I shall order payment by the
defender to the pursuer of the sum of £13,000 Sterling in respect of the second
conclusion of the summons by instalments of £400 per month, the first
instalment being due on the last day of the fourth month following extract with
interest on each instalment as it falls due of eight per centum per annum until
payment and (3) I shall find the defender liable to the pursuer in the expenses
of the action as taxed, in so far as not otherwise dealt with.
