Banks v. Smith or Banks [2005] ScotCS CSOH

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Scottish Court of Session Decisions

You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Banks v. Smith or Banks [2005] ScotCS CSOH_144 (08 November 2005)
URL: http://www.bailii.org/scot/cases/ScotCS/2005/CSOH_144.html
Cite as: [2005] ScotCS CSOH_144, [2005] CSOH 144, [2005] Fam LR 116

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JISCBAILII_CASE_FAMILY_SCOTLAND

OUTER HOUSE, COURT OF SESSION

[2005] CSOH 144

F12/04

OPINION OF LORD CARLOWAY

in the cause

JOHN OWEN BANKS

Pursuer;

against

KATHLEEN ROSS SMITH OR BANKS

Defender:

________________

Pursuer: Wise, Q.C.: Maclay Murray & Spens

Defender: Louden: Simpson & Marwick

8 November 2005

Procedure and Pleadings
[1] This is an action of divorce in which the defender seeks a substantial capital sum, transfer of the pursuer's title in the matrimonial home at 34 Riverside Drive, Stonehaven and a periodical allowance. The parties were married on 9 October 1965. There are two children of the marriage, namely: Leslie, born on 17 November 1966: and Sharon, born on 15 September 1970. The action was raised in early 2004. Although a proof at large was allowed on 14 May 2004, on 10 June 2004 a further interlocutor was pronounced in the following terms:

"The Lord Ordinary, on the motion of the pursuer, allows to parties a preliminary proof to determine the relevant date in terms of section 10(3)(a) of the Family Law (Scotland) Act 1985 ..."

Section 10(3)(a) of the Act (c 37) defines "the relevant date" as: "the date on which the parties ceased to cohabit" and section 27(2) provides that: "the parties to a marriage shall be held to cohabit with one another only when they are in fact living together as husband and wife".

[2] The pursuer's averments contend for a "relevant date" of 1 April 1993 or, on an esto basis, one no later than about January 1996. They read:

"After the marriage the parties lived together, but the marriage was unhappy for many years. In about April 1993, the pursuer accepted employment in Tunisia in what was classified as a single man's post. The pursuer left the former matrimonial home at that time. The parties have not lived together as husband and wife since 1 April 1993. From that time, the pursuer has worked abroad or at his employer's offices in Edinburgh. When in Scotland he would stay at a hotel in Edinburgh. During 1994-1996 the pursuer made some visits to the former matrimonial home in Stonehaven to spend time with the parties' daughter, Sharon, who continued to reside in the former matrimonial home until about 1996 or 1997. No single visit lasted for more than 14 days. The last of said visits took place in mid 1994 (sic), some time before Sharon moved to rented accommodation in Aberdeen. Since 1993, the pursuer has spent only one Christmas at the former matrimonial home, in 1995, so that he could see Sharon. He did not share a room with the [defender] during said visit. The pursuer has described himself as "separated" in formal documents since about 1994 or 1995...The parties' children visited the pursuer in Singapore and in Malaysia, Australia and Brazil during the late 1990s and in 2000 and 2001. The pursuer was keen for his family to visit. From about 1995 the [pursuer's] employers and colleagues were aware that he was separated. Some thought him to be divorced. The parties had almost no direct communication from about 1996 ..."

In response to the defences, the pursuer continues:

"In September 1993 the defender took Sharon to Tunisia to see the pursuer. The defender and Sharon shared a bedroom on said trip. The pursuer slept in the lounge area. In September 1994, the defender brought Sharon to see the pursuer in Singapore. She and Sharon stayed in a different hotel to the pursuer. At the end of the trip the parties and Sharon spent a few days in Phuket. They were unable to be companionable to each other even for Sharon's sake. At the end of the trip the pursuer openly told the defender that he would not contemplate any such future trips. In 1995 the pursuer was leaving Bangkok and required to store some ornaments in Scotland for a while. From about 1996, the defender continued to have telephone contact with members of the pursuer's family. She made [it] clear to them that the pursuer no longer visited the former matrimonial home and she was effectively not in contact with him. In light of the parties separation, the defender organised her leisure and holiday time on her own, without reference to the pursuer. In January 1996, when Stena bought out Ben Line Drilling, the pursuer was offered a position based at the Head Office in Aberdeen. He declined said offer because of the parties separation. In about 1997 he met and subsequently formed a relationship with Judy ... Ong ... In November 1997 the pursuer flew to Scotland for his mother's funeral. He stayed with his brother in Glasgow. The defender attended the funeral with the children. She stayed at another relative's house....In about May 1998 the pursuer decided to take further steps to separate the parties finances. He met with the defender and the bank to do so. He had become unhappy...that the defender had access to his whole monthly salary. He considered it appropriate to transfer sufficient to an account that she could use for her needs, but to have his salary paid into a Channel Islands account from which a specific sum would be made available to the defender. The pursuer continued to own the property in Stonehaven and had no permanent base abroad to which he could remove his possessions. When he required documentation or clothing he would sometimes ask a friend and colleague to attend at the said property to collect same. With effect from January 2003 the pursuer has held the position of Global Operations Manager in Stena, working out of the Head Office in Aberdeen. As he was present in Aberdeen, he attended the property in Stonehaven himself, to collect items he required for a trip to the Arctic Circle. He telephoned the defender ...it became clear that the defender was aware that the pursuer had been posted to the Aberdeen office of Stena. She asked whether...he would consider a reconciliation. The pursuer replied that the marriage had been over for too long to contemplate reconciliation."

The defender's averments in answer contend for a "relevant date" of "around mid July 2001". They read:

"Initially when the parties were married the pursuer was attached to the merchant navy. He worked approximately three months away on a ship and would return home on leave for approximately two to three weeks ... In January 1983 the pursuer was based in the Aberdeen office of his employers, although still worked on occasion on a drill ship. Around this time the parties moved from Glasgow to Stonehaven. Between this time and late 1996/early 1997 the pursuer worked in Aberdeen, London and Edinburgh offices of his employers. When working in the London and Edinburgh offices the pursuer would work in those cities during the week and return to Stonehaven to the family home at weekends. During the time the pursuer was working in Edinburgh the parties discussed purchasing property in Edinburgh...Around late 1996/early 1997 Ben Line (the pursuer's employers) decided to sell the drilling rigs. The pursuer thereafter joined Stena and was based in Aberdeen. From that time on he worked in various places abroad, including Singapore, Australia and the United States. The defender did not object to the pursuer working abroad in a single status job as this is quite normal in the oil business and had been the pattern during the parties' marriage. The pursuer's tours abroad would last around two/three months and he would return to the family home for about two weeks in between tours. When abroad the pursuer would regularly telephone home...The defender has never accompanied the pursuer on his work tours abroad. She stayed at home to look after the family. The pursuer did not want her to accompany him stating that when he was abroad he wanted to concentrate on his work...During the course of the marriage and after 1993 the defender entertained business colleagues of the pursuer at the family home. The parties went out together with their children as a family unit. Around 1997 the parties together attended the pursuer's mother's funeral.... Around May 1998 the parties attended a meeting with a member of the Royal Bank of Scotland in Stonehaven to discuss their finances, including the continued operation of a joint bank account. There was no discussion of any alleged separation of the parties during the course of the meeting. The pursuer advised the defender that the reason for the meeting was to rearrange his finances with a view to minimising his tax liability. The pursuer opened four accounts in Jersey, removing around £90,000 from joint accounts. On the advice from a financial advisor the pursuer decided to pay his salary into one of the bank accounts in Jersey. Around September 1993 the defender spent some time in Tunisia with the pursuer. The parties daughter Sharon accompanied the defender. The parties shared a bedroom. The defender visited the pursuer with the parties daughter in Singapore around September 1994. The defender and Sharon stayed in a different hotel...as the pursuer said that his hotel was too far "from the centre of things" and was close to his office. The three spent a family holiday in Phuket. The parties shared a twin bedroom in Phuket and Sharon had her own bedroom. Around 1999 while working in Singapore the pursuer arranged for furniture and ornaments purchased by him to be sent to the former (sic) matrimonial home for use in the home...Towards the end of 2000 the pursuer would occasionally stay overnight in the Marcliffe Hotel in Aberdeen. He stated to the defender that it was more convenient for him to do so if he had an early meeting the next day. The pursuer began to spend more time in the Marcliffe Hotel when home from abroad, although until around mid July 2001 would still return home and spend time with the defender. The parties last slept in the same bed around 1998. The pursuer stated to the defender that he wished to sleep separately since he had difficulty sleeping. Prior to around mid July 2001 the pursuer continued to stay overnight in the former matrimonial home. Around August/September 2001 the pursuer asked the parties' children to have a meal in a hotel. He did not invite the defender to accompany them. This was the first indication given to the parties children that their parents marriage was at an end. Until that time the defender attended to all family gifts...She cooked for the pursuer and did his laundry...The parties financial arrangements remained the same. Until around May 1998 the pursuer paid his whole salary into a joint account in the parties' names. From around May 1998 he paid £4,000 into a joint account from which the defender transferred £1,000 to an account in the pursuer's name for his own use. The defender paid the credit card accounts for the pursuer until around the end of 1998/beginning of 1999...She paid other personal bills, including professional fees and jewellery insurance...The pursuer owned a gun which was licensed. Mail was sent to the pursuer at the former matrimonial home. The pursuer and defender were both on the Register of Electors registered at the former (sic) matrimonial home...On 10^th January 2003 the pursuer told the defender that the marriage was over and for the first time said that he did not intend returning to live in the former matrimonial home. The pursuer telephoned the defender and stated that he required work clothing from the matrimonial home. The defender asked the pursuer why he had not returned home. He said that it did not fit in with his life....On 21 February 2003 the defender applied for a reduction in Council Tax on the basis that she was occupying the former matrimonial home as a single person."

The Evidence

(a) The Pursuer's Case
[3] The pursuer is aged 63. He is the currently the Global Operations Manager of Stena Drilling and, at the time of the proof, was living in that company's apartment in Aberdeen. At the time of his marriage, the pursuer was employed by Ben Line. He worked as an engineer on the Far East route and on various oil rigs throughout the world. Until 1981, his pattern of work involved him being away from home for three months at a time interspersed with three weeks on-shore. The defender never joined him aboard ship, other than for a one week coastal trip. In 1981, the pursuer started a shore based job in Aberdeen, but this involved periods of week-end cover spent in the office. He bought the matrimonial home in Stonehaven. He described his relationship with the defender as being of "reasonable quality" up until about 1986-87, when they began living more separate lives. By this, he meant that they would not go out together much, even to the annual Ben Line dance, which they had previously attended. They did not go on holiday together. The family had been on four holidays together: one three week vacation at Disneyland in California: two one week ski-ing breaks in Austria: and a one week spell in Spain. The pursuer spent more and more time in the office. He found that he and his wife had very little in common. By 1987-88, they had separate bedrooms and, as the pursuer put it, led separate lives. The move out of the marital bed had been instigated by the pursuer, but had provoked little reaction from the defender.

[4] Some insight into the quality of the marriage was provided by the pursuer's brother, James Banks, a former chartered accountant now aged 70. He said that, as early as 1983-84, the defender had confided in him that things had not been going "too well", that the parties were not sleeping together and that there was a lack of feeling in the relationship. The pursuer's sister, Elizabeth Swinton (68), a retired educational officer, also assisted here. The defender confided in her to a degree; complaining that the pursuer "was never there" and, when he was, he just watched television and never socialised. He spoke only of his work.

[5] In 1990, the pursuer took up a post at Ben Line's head office in Edinburgh. During the week, he would stay at the Scandic Crown Hotel on the High Street or at the nearby Carlton Highland. He would return to Stonehaven at the weekends, but could not recall participating in any activities with the defender. The defender had produced a number of particulars of houses in the Edinburgh area from this time (no. 7/4 of process), but the pursuer said that these had not been intended as purchases, which he might share with his wife and family. In 1993, the pursuer volunteered to take up a posting in Tunisia as it suited, as he put it, his personal circumstances. He adopted single person status maintaining that, by this time, he regarded his marriage as over. He said that he made a conscious decision to live apart from the defender. However, he accepted that he did not discuss that with the defender. He did say, on the other hand, that he handed his house keys over to the defender before leaving.

[6] The defender and Sharon visited the pursuer for a week in Tunisia. The pursuer explained that the defender accompanied Sharon only because he was concerned about Sharon travelling alone. According to the pursuer, he moved out of his bedroom to accommodate the defender and Sharon. Relations between the parties were strained, but there was no discussion about the marriage. The pursuer's next posting was to Bangkok. Meantime, he did return to Stonehaven at times, staying overnight on two occasions although, as before, he did not share a bed with the defender. In September 1994, the defender and Sharon visited the pursuer in Bangkok, but he had organised a separate hotel for them in the city centre. They all went on a three day trip to Phuket. This time, he did share a room with the defender, but there were twin beds. Relations were again strained and the pursuer maintained that he had told the defender that this would be the last time anything similar would be arranged. The defender never again visited the pursuer, although both children did.

[7] The pursuer kept detailed records of the limited nature of his visits to the United Kingdom in order to maintain his non-resident tax status (no. 6/9). The records omit the day of travel into the United Kingdom and latterly, from about 2000, both the days of travel in and those out of the country. It is presumably for that reason that short trips of a day or two appear sometimes to be omitted altogether. This is the case, for example, in respect of the pursuer's visit to Glasgow for his mother's funeral on 20 November 1997 (see infra). The records show that, after the Tunisian tour from 13 April to 5 September 1993, the pursuer spent almost two months back in the United Kingdom and intermittent periods thereafter until his departure for Bangkok on 4 January 1994. From in or about 1994, the pursuer described himself as "separated" when applying for visas to work abroad (nos. 6/2-6), although his address remained stated as that of the matrimonial home. After a prolonged spell in Bangkok, which lasted until 19 May 1995, the pursuer again had intermittent stays in the United Kingdom, culminating in two periods of almost two months from 18 August to 11 October and 4 December to 27 January 1996. During these periods, the pursuer maintained that he stayed mainly at the Scandic Crown or otherwise in Aberdeen or Gothenberg, as he was heavily involved in the sale of Ben Line to Stena. However, he accepted that, around this time, he did visit the house in Stonehaven occasionally. He said that he stayed overnight on two occasions in about 1994. He would have telephoned the defender to arrange this and no objections from her were forthcoming. He slept in a separate bedroom, as before. He also stayed overnight in the house at Christmas 1995. He maintained that this was because he wanted to see the children. That Christmas marked what he said was the last overnight stay.

[8] The sale to Stena was completed on 10 January 1996. The pursuer was offered an office based job in Stena's Aberdeen office. He declined this as he wanted to continue to work abroad. This is confirmed in an affidavit from Tom Welo, the managing director of Stena Drilling. The pursuer did not discuss his future posting with the defender. He resumed his position as Far East Operations Manager based in Thailand, where the records reveal he stayed continuously until May. The house was not "re-mortgaged" at this time, the loan being solely in his name (nos. 7/5 and 6). From 1996, the pursuer began visiting the United Kingdom only quarterly and solely for business reasons. The pursuer was entitled to between six and eight weeks annual leave, but none of that was spent in the United Kingdom. If he took leave, he would spend it in the Far East. When in the United Kingdom, he would spend no more than a few days in the country. He denied making requests to his wife to send items out to him in the Far East, other than in the early stages of his stay there. When he was in the United Kingdom, he would usually stay at the Marcliffe Hotel, Pitfodels, Aberdeenshire. When the defender was contacted by the police concerning the pursuer's gun licence in July 2001, the pursuer was found at the Marcliffe.

[9] Ian Fraser, who was described as the pursuer's "go-for", tended to make all of the pursuer's travel and accommodation arrangements at this time and would accompany him abroad. If the pursuer were in the United Kingdom, Mr Fraser would do all of the pursuer's driving, including picking him up in the mornings for work and driving him to and from the airport. He was in Tunisia and maintained that, when the defender had been there, he had been aware that she was sharing the bedroom with Sharon. The pursuer was using a pull down bed in the living room. It was in 1994, when the pursuer was in Thailand, that Mr Fraser said it began to become obvious that the parties were living separate lives. He confirmed that, during the negotiations for the sale of Ben Line, the pursuer mostly stayed at the Scandic Crown or, if in Aberdeen, at the Marcliffe or other local hotel. Because he worked an eighteen hour day for the pursuer, he maintained that he would have known if the pursuer had visited Stonehaven. According to Mr Fraser, with the exception of the visit for the Arctic clothing (see infra), from the mid 1990s the pursuer had not visited the defender in Stonehaven.

[10] The pursuer maintained that it had been his brother who had told him of his mother's death in November 1997, although the defender had also telephoned him. His brother testified that he had not contacted the pursuer. The pursuer also denied asking the defender to bring him a suit for the funeral. The defender did attend the funeral along with the children, but there was little communication between the parties. That lack of communication was confirmed by the pursuer's brother and sister. They both seemed to think that there was nothing left between the parties. However, Mrs Swinton did say that the pursuer had mentioned a suit.

[11] Meanwhile, the pursuer had taken no steps to alter the financial arrangements which the parties had been accustomed to. The pursuer's salary continued to be paid into the parties' joint bank account in Stonehaven. The defender arranged to pay the household bills, including the loan secured over what was the pursuer's sole property, insurances, the pursuer's professional fees and his monthly credit card account. The explanation for all of this from the pursuer was that it was difficult to open up accounts in other countries or to obtain a local credit card. He did, however, eventually open an account in Thailand. It was only in May 1998 that he had arranged to go with his wife to the bank to change the arrangements. Although the pursuer said that this meeting was to separate out the accounts, the change was only that, in future, his salary would be paid into an account in the Channel Islands. Every month, £4,000 would be transferred from that account into the same joint account in Stonehaven and then £1,000 would go from the joint account to the pursuer's Thailand account. In addition, the parties had two further joint deposit accounts with the Stonehaven bank. These were not closed although, at the meeting, the pursuer arranged to withdraw some £90,000 from them. The pursuer accepted that some of his non-personal mail would have continued to be sent to the house (e.g. no 7/7). On his leaving Bangkok in 1995, the pursuer had purchased several items of furniture and decoration and arranged for them to be shipped to the matrimonial home, where they still remain. According to the pursuer, he never mentioned these items at all to the defender.

[12] The pursuer explained that he did not at any stage propose a separation from the defender, as, he said, he wanted to maintain his relationship with the children. His mother was a practising Roman Catholic and he did not wish to take any steps towards a divorce whilst she lived. In 1996, the pursuer had met Judy Ong. She worked with a company that acted as Stena's agents in Singapore. Their relationship developed from a business one into a personal one in 1998. They went on holiday together from 1999. According to Judy Ong, at some point the pursuer had confided in her that he was separated and had been since the 1990s, perhaps the early 1990s. Although he last voted sometime in the 1980s, the pursuer accepted that he remained on the Electoral Roll at the address of the matrimonial home. He did not remove his personal possessions from Stonehaven since, he said, he did not require them when abroad. In January 2003, the pursuer returned to Aberdeen after a three year tour in Brazil. On about 10 January 2003, he arranged with the defender to collect his heavy protective clothing from the house, because of a business trip into the Arctic Circle. He maintained that, when he telephoned the defender, he had told her that he was back in Aberdeen. She had asked if they could get back together, but he had replied that the relationship was over and had been for a long time. In that regard, on being recalled to deal with certain matters emerging in the defender's case, which had not been put to him is cross-examination, the pursuer denied staying overnight at Stonehaven in either October 1988 or May 1999. He also denied that he could have been running past the window of a neighbour, Mary Gordon, in the late 1990s (see infra).

[13] During cross-examination, a document generally in his handwriting was put to the pursuer. This was part of a resumé of his employment, which he had prepared for business purposes in around 1976, when the parties were still in Glasgow. Under the heading "marital status" was written the word "single". The document had been found by the defender in the pursuer's papers. The pursuer denied having written the word "single". I accept that denial. At that time, there would appear to have been no reason for him to have written this. Even if he had, I would have been able to make little of it other than that the pursuer might have wanted single status positions, a fact that was, in any event, fairly clear. In short, I have not taken anything significant from this document.

(b) The defender's case
[14] The defender is aged 63 and remains in the house at Stonehaven. She described the early part of the marriage as reasonably happy if, in her case, a lonely existence. She had accepted, when she married the pursuer, that he was in the merchant navy and would be away from home for long periods. Her husband was not a social person and they had little social life, other than visits to his family at the weekends. He was a 'workaholic' and seldom took time off for holidays other than on the four occasions which he had mentioned in evidence. There had been no holidays after about 1984. Even early on in the marriage, the defender had visited the pursuer only twice when he had been away from home. The first was when he was docked at Southampton and the second when she was permitted on the week long coastal trip. Otherwise, the pursuer was on the Far East run and had told the defender that he did not want her to visit him as he was abroad to work and not to socialise. On his visits home, he would attend to the maintenance of the house, go out to visit his family, but little else. Even when he was stationed in Aberdeen, he was frequently abroad and also worked in the office at weekends. The pursuer would return home from work, often late, have his meal and watch television until he fell asleep. The defender would bring him a cup of tea and he would retire to bed, getting up early in the morning to go to work. The parties did occasionally entertain people for dinner, Mr and Mrs Watson being annual guests at New Year. They also went out to the annual Ben Line dances but, certainly by the time of the Stena takeover, they had ceased to do so and the pursuer went on his own. The parties had stopped sleeping together in 1985, after which the marriage deteriorated, presumably further.

[15] When posted to Edinburgh (which the defender initially said erroneously had been in 1994), the pursuer returned to Stonehaven at the week-ends. However, the property schedules (no. 7/2) had been given to the defender by the pursuer as the company had grown tired of paying the pursuer's hotel bills. At that time, the parties could not have afforded to run two households. Therefore, the schedules had been obtained with a view to the parties relocating to Edinburgh. In 1993, the pursuer accepted the posting to Tunisia but had not handed back any keys. He seldom carried keys, since he expected the defender to be at home any time he returned. He only took his keys if he was going to be late back from what he termed a "smoker" (an all male evening). On his visits home from abroad, the parties would have meals together with the children, the last occasion being sometime in 2000. The visit to Tunisia had been at the pursuer's invitation. The parties had shared a bedroom, with Sharon using a single bed in the living room. They had separate hotels the following year in Bangkok. Although this had annoyed the defender, it was said to have been because, as the pursuer had told her, his hotel was not centrally located. The defender accepted that the trip had not gone well, but qualified that by explaining that the parties had not got on well for years. He had not said that there would be no more visits by the defender to the pursuer. Although there were in fact no further trips, the defender had not queried that. She was not aware that the pursuer had taken any leave thereafter. Some time after this, perhaps in the mid 1990s, the defender began holidaying for a week in Tenerife with Sharon. She eventually bought a week's time-share there. She regarded this as being too "down market" for the pursuer's tastes. She told him of the purchase, but there was never any suggestion of him visiting. The defender did not have the pursuer on her passport as a person to contact in the event of an emergency (no. 7/1).

[16] When the pursuer was leaving Bangkok, he had telephoned the defender and told her that he was sending furniture and ornaments (including a four-foot high brass man) for the house. During the period to 1996, the pursuer telephoned the defender once a week or fortnight to ask how the children were and what was happening "at home". The defender did not think that the calls involved any concern on the pursuer's part for her welfare. The defender would send out items, which the pursuer requested, because he could not source them abroad. These included his favourite brands of porridge, sweets, biscuits and toothpaste. If he came back to the United Kingdom, the parties and the children would have a meal together either at the house in Stonehaven or at a restaurant. During some of the time when they met for meals at the house, the children were living away from Stonehaven. The pursuer would have asked the defender to arrange for the children to come and see him at the house. The defender was always tense at these meetings. She felt under strain every time the pursuer was at home, as she did not know whether he was going to be civil or not.

[17] The parties had "re-mortgaged" the house with the Royal Bank when the special rate, which they had obtained through Ben Line, expired. The defender understood that the loan had been taken out in joint names. She had not been aware that the house was in the sole name of the pursuer. The bank statements were always in both names. The defender had been aware that the pursuer had declined the opportunity to return to work in Aberdeen in 1996. She had discussed this with the pursuer, but he had said that he preferred to work abroad. The defender had visited her mother-in-law in hospital a week or so before she died. The children had gone with her. Mrs Swinton had contacted the defender when the pursuer's mother had died. The defender had contacted the pursuer to tell him about the death and the funeral arrangements. He asked her to bring a suit to Glasgow for him and she did that. The funeral had involved a day trip only.

[18] In May 1998 the pursuer contacted the defender and asked her to organise a meeting with a financial adviser from the bank because, he said, he was paying too much tax on the interest gained on the Stonehaven bank accounts. He had wanted to open up an account into which he had then deposited about £71,000 and into which he planned to pay £1,000 per month, all with a view to creating a pension fund. The financial adviser recommended that he pay his salary into an offshore account and this was done. There was no separation of accounts. Had there been, the defender would not have permitted the pursuer to remove the large sum of money he had done without seeking legal advice, which she only did for the first time in 2000. The pursuer had always provided well for the defender and the children. He continued to send £4,000 per month to the joint account and, as agreed, the defender remitted £1,000 to Thailand. She did this personally by calling at the bank every month. The pursuer did not carry a cheque book and did not transact on the joint account at all. The defender continued to pay all bills, including the pursuer's insurances and professional fees. Mail continued to be sent to the house (e.g. no. 7/7). Both parties remained on the Electoral Roll (no. 7/10).

[19] In the period from 1996 to 2000, the pursuer would only come to the United Kingdom two or three times a year for three or four days, or even just one night. He would leave items of laundry for the defender to attend to. The defender had complained about the pursuer's absences to his sister and a neighbour, Mary Gordon. She had not told them that she was separated, as she did not consider that she was. According to the defender, the pursuer continued to stay occasionally at the matrimonial home until he commenced work in Brazil. For example, he was at the house when Leslie had just been given entry to his own home in October 1998. From around 2001, the pursuer stayed at the Marcliffe on the pretext of having early meetings. According to Mary Gordon, who gave evidence and who was separated from her own husband, the pursuer was last seen by her running past her window in the late 1990s. By running, she meant that the pursuer was exercising in a formal manner, presumably suitably attired for such a purpose. She lived on the same street as the parties' house in Stonehaven. It was only in 2000 that Mrs Gordon noticed that the pursuer was not returning home as often as he had done. Mrs Gordon was a friend of the defender through the church. She said that she would have been aware if the pursuer were home. The defender would tell her. Mrs Gordon tended to avoid visiting the defender if the pursuer was at home; times when the defender appeared agitated.

[20] Around July/August 2001, the pursuer ceased coming to the Stonehaven house at all and that was the last time the defender had prepared a meal for him. This had always been the defender's position, whatever the state of the early pleadings in the action might have been. The pursuer excluded the defender from joining him at the Marcliffe only on the basis that he wanted to speak to the children on his own. However, even after this, the defender continued to do things like sending Christmas and birthday cards and presents to others "from John and Kathleen". It was only in January 2003 that the defender realised that the pursuer was not going to return home. This was when he telephoned about the clothes for the Arctic and she had asked him where he was living. He had replied "the office" (not the company flat). He said that he did not want to stay at the house. The defender had not asked for a reconciliation. Even at that stage, considerable quantities of the pursuer's clothes and other personal belongings remained in the house. It was only after this, in February 2003, that the defender applied for a single person's discount in respect of the Council Tax (nos. 7/11-13). It was even later that she learned that the pursuer was in a relationship with Judy Ong.

[21] Sharon Banks is aged 35, currently living with the defender, and employed part time as a bar/restaurant manager. She has a young girl to look after. She recalled the parties never having a great marriage and, on one undated occasion, the defender packing a suitcase preparatory to leaving the pursuer. The fighting between the parties had started not long after the move to Aberdeen. When the pursuer was working in Aberdeen, he would still go offshore for two weeks at a time. Otherwise he left for work at 6 am and returned after 10 pm. When he did return, it was difficult to predict his mood. The defender attended to all the domestic tasks. The pursuer expected the defender to be at home and therefore did not normally carry keys. The parties did not do much socialising, although there was some social contact with the Watsons and other people from the pursuer's office. Miss Banks moved out of the family home at the end of 1993 and lived in her own flat, or that shared with a boyfriend, until 2001. She visited the defender about once a week and spoke regularly to her on the telephone. She went to Tunisia with the defender at the pursuer's invitation. There had been no suggestion of her visiting the pursuer on her own. She said that she had slept in a sofa bed in the livingroom. The pursuer had been up and dressed early, ready to go in the mornings. She had not been aware of Mr Fraser entering the bungalow in Tunisia. She confirmed that the parties had also shared a bedroom in Phuket in 1994. During that holiday, relations between the parties were "not good" and she had been upset because the pursuer appeared to be speaking to her and ignoring the defender.

[22] According to Miss Banks, the pursuer did stay at the house at Stonehaven after 1993, albeit that his visits to the United Kingdom were only for a day or two. He also stayed in hotels on the basis that he had early meetings to attend. Miss Banks knew that he stayed at the house because she and her brother would visit to have family meals there when the pursuer was in the country. The defender was very unsettled when the pursuer was returning home, as she did not know what kind of mood he might be in. The defender would cook and launder for him on these visits. Miss Banks also recalled being in the house when the pursuer telephoned to request items be sent out to him, such as steak and kidney pies, shampoo and toothpaste. The defender would also send him Christmas and birthday presents. Mail continued to be sent to the pursuer at the house address. The pursuer continued to keep clothes at the house. The defender continued to send gifts and cards from "Kathleen, John and the family", although the number of cards coming into the house diminished as the defender knew fewer and fewer of the pursuer's work colleagues.

[23] Miss Banks confirmed the pursuer's 'workaholic' nature. When she visited him in Brazil, he would leave for work early in the morning and return at about 8 pm, seven days a week; although he took Sunday afternoons off when she visited. Her view was that the pursuer's priority had always been his work. He wanted to be, and had the reputation of being, the best. He wanted to go higher and higher in the company. The family was not a priority. She recalled the last Christmas she spent with the parties in 1995 and was quite emotional when describing it in evidence. The problem stemmed from the parties going to visit the Watsons for some hours, rather than staying to have Christmas dinner with her. An argument ensued and Miss Banks never got her dinner but left to see friends.

[24] In cross examination, Miss Banks said that she had been upset at her father when speaking to him on the telephone some months before the proof. However, this had not been related to the divorce case but to her father failing to assist her at a time when her own daughter had been diagnosed as deaf and, following her own separation, she had been about to lose her home. Her father had simply suggested that she apply to the local authority for housing rather than offering financial assistance. Miss Banks also said that she had understood, from discussions with the defender, that the pursuer's position on the separation date was designed to deprive the defender of appropriate financial provision. She did not think that this was fair.

[25] Leslie Banks is aged 38. He is a computer aided design operator. He gave evidence through an interpreter for the deaf, Mrs Catherine King, whose skills at rapid, accurate and sensitive translation were remarkable and of considerable assistance to the Court. Because of his profound deafness, Mr Banks had spent much of his childhood and teenage years at boarding school in London. He only saw the parties at holiday times, when they seemed "fine". He recalled the foreign holidays with some affection, but confessed that his relationship with his father had been poor. This was partly because of communication problems, as the pursuer had never learned sign language. When he returned home, after a time a college, he noticed that the parties had begun to fight. The pursuer would leave early for work and return late at 8 or 9 pm. When he came home, he only wanted to eat, to relax and, ultimately, to fall asleep in front of the television. From 1993 to 1998, Mr Banks had been married and lived with his wife in Aberdeen. After separating, he visited the pursuer abroad before returning to the family home for some months and then buying his own house in Stonehaven. When he had been married, he would visit the defender perhaps twice a week after a round of golf. He recalled that, initially, the pursuer would telephone home with enquiries about the children and requests for his favourite items. The defender would obtain these and arrange for them to be sent abroad. The last time this happened was in 2001, when she sent him porridge, although she also gave Mr Banks a present to take to the pursuer at Christmas 2002. Mr Banks recalled the pursuer staying overnight at the house in Stonehaven in October 1998, after he had bought his new house. He recalled this as he had to rush his round of golf to see the pursuer before he went to bed. He also recalled the pursuer staying overnight in May 1999 as he had seen him doing some paper work, whilst watching the English FA Cup. The last time he had seen his father at the house was in July 2001, when Mr Banks had been asked down for a meal. Mr Banks had been training for a half marathon at this time. However, the pursuer had not stayed overnight on that occasion but had gone to a hotel, as he had done previously, saying that he had an early morning meeting to attend. When the pursuer had visited the house on his returns from abroad, his routine did not change. He would have a chat, eat his dinner and watch television. Mr Banks recalled the mail piling up at the house and taking it out to the pursuer. He was also conscious of the pursuer's personal belongings remaining in the house. The first time he became aware that the parties were separated was in January 2003. Neither party had said they were separated before then, even although Mr Banks knew that the pursuer had been in a relationship with Judy Ong since early 1999. Finally, it should be noted that, like his sister, Mr Banks said that he had understood, from discussions with the defender, that the pursuer's position on the separation date was designed to deprive the defender of appropriate financial provision. He also did not think that this was fair.

Submissions
[26] It was accepted by both sides that the critical issue was when the parties had ceased cohabiting. Neither party argued that there had been any resumption of cohabitation in terms of subsection 10(7) of the 1985 Act (cf Brown v Brown, unreported, Lord McCluskey 27 May 2003). The test was the same as it was in relation to ascertaining periods of "non-cohabitation" for divorce purposes (Divorce (Scotland) Act 1976 (c39) sections 1(2)(d) and (e). According to the pursuer, the test of whether the parties had ceased cohabitation was an objective one. The parties' own views on the matter at any given moment were irrelevant (Clive: Husband and Wife (4^th ed) para 21.070 criticising the English Court of Appeal in Santos v Santos [1972] Fam 247]). If the parties were physically living apart, they had ceased to cohabit if they did not resume living together thereafter. On that basis, the parties had separated on 13 April 1993 as they did not live together thereafter. The issue was one of fact and various factors could be important (Clive (supra) para 21.075). The views of the children on whether the parties were separated were also irrelevant. The esto case date was selected as an alternative as, after 1996, all social contact between the parties had ceased. Also, it was then that the pursuer had declined the opportunity to move back to Aberdeen in favour of working abroad. Thereafter the parties never holidayed together. The pursuer did not spend his leave with the defender. He would visit his brother in Glasgow without seeing the defender. Even at the funeral, the pursuer had effectively ignored the defender.

[27] From 1993, the pursuer's relatives had ceased visiting Stonehaven. The defender had ceased to entertain any of the pursuer's business colleagues. Indeed, the dwindling Christmas cards showed that she did not know many of them after 1993 and none after the Stena takeover in 1996. Had she been living with the pursuer after that, she would have known who they were. It was clear that, from at least 1993, the pursuer regarded himself as separated, hence the content of his visa application forms. Although, during this period, the defender was complaining to others about the pursuer's absences, she did not complain to the pursuer.

[28] There were a number of disputed matters. Generally, the parties disagreed over whether there had been a change in their relationship post 1993, notably over whether the pursuer had left his keys behind. Although the defender maintained that life had gone on as before, that was inconsistent with the evidence of his decreasing returns home. There was a dispute also on whether the pursuer had stayed overnight after 1996 and, if he had, whether that amounted to cohabitation. That was the critical issue, with the other matters, such as the financial arrangements, being of less or peripheral significance. So far as the sleeping arrangements in Tunisia were concerned, there was a disagreement, but that was more to do with reliability than credibility, given the time lapse. However, if a couple were continuing to live together, it was inconceivable that one of them would have organised a separate hotel as had been done in Bangkok in 1994. The pursuer said that, during that holiday, he had announced that there would be no further trips and he had been supported to an extent by Miss Banks' reference to some form of incident between the parties. Also, there were no further trips and that amounted to a clear change in the parties' arrangements. The facts that the defender might have continued to purchase items for the pursuer and to operate the joint account were not significant, nor was his leaving items in or sending items to the Stonehaven house, given the absence of an alternative address.

[29] On the critical issue of the overnight stays, the pursuer and Mr Fraser ought to be accepted as correct that there were no overnight stays after 1996. It was significant that, initially, the defender had said that the pursuer had been working in Edinburgh in 1994 and 1995, when, in fact, it had been two or three years earlier. Perhaps she remained three years out with her dates throughout her evidence. She was very bitter and concerned about money and maybe that had influenced her evidence. In her defences, she had originally contended that it was only at the end of 2001 that the pursuer had started staying in the Marcliffe but she had conceded in evidence, the hotel documentation having been produced, that it was earlier than that, when he had gone to Brazil. She had also contended in the defences for a relevant date of January 2003, which was also not tenable. Her contention had been that the marriage had just trundled on over the years, but on one occasion, according to Miss Banks, the defender had been prepared to leave.

[30] Miss Banks had been trying to tell the truth but all she could say was that, for some time post 1993, the pursuer was definitely coming back to the house. Miss Banks was nevertheless biased towards the defender, who had been saying to her that the pursuer's position on the relevant date was aimed at depriving her of appropriate financial provision. Miss Banks was also biased against the pursuer, since she had perceived that he had failed to assist her when she had asked for assistance with her house. Equally, Mr Banks was close to the defender and very angry with the pursuer. He was wrong that the pursuer had stayed overnight post 1996. Perhaps, like, the defender, his dates were out by two years. It was inconceivable that the defender had not discussed the case with the children and their evidence should be treated with caution.

[31] The defender adopted a similar approach to the law as the pursuer. However, in determining the relevant date, the defender maintained that the Court should look at the various elements before a proposed date, and those after it, to see if there had been any change in the relationship. The Court should ascertain the date by reference to the manner in which the relationship existed when the parties were admittedly cohabiting. Each case would turn on its own facts (Clive (supra) para 21.082). If there were complete separation, the parties could not be cohabiting. That did not happen in this case until about July 2001, when the pursuer ceased staying overnight. After that, the children only saw the pursuer outwith the Stonehaven house. There were a number of matters which were not in dispute and which the defender helpfully listed in writing. These included: the absence of any clear indication in March 1993 that the pursuer was leaving permanently; the existence of at least some contact thereafter by telephone; the sending of requested items to the pursuer by the defender; the furniture and sending of the ornaments from Bangkok; the occasional overnight stays, including that at Christmas 1995; the defender continuing to pay for things for the pursuer; the financial changes in May 1998 not involving a cessation of joint accounts; the pursuer continuing to nominate the Stonehaven house as his permanent address; the presence of his gun in the house; the continuing delivery of mail there; the pursuer's clothes remaining there; his presence on the Electoral Roll; and the views of the children on the parties' status. So far as the issues in dispute were concerned, the defender again listed these in written form. They included notably: the number of times the pursuer stayed at the house post 1996; the Tunisian sleeping arrangements; the funeral details; the start of the Marcliffe dinners with the children only; the degree of telephone contact; and the terms of the January 2003 conversation. These required resolution as a matter of credibility. The pursuer ought not to be accepted given, for example: his erroneous evidence about who had told him of his mother's death; the conflict between him and Mr Fraser on when he had started eating out only with the children; and his denial on record regarding the sharing of a bedroom in Phuket. Although the parties and witnesses may have experienced some confusion over dates, not all of the differences could be explained under the heading of reliability. For example, either Mr Fraser was telling the truth about the Tunisian sleeping arrangements or he was not.

[32] In support of the defender's position, there was the evidence of Mrs Gordon on the timing of the pursuer's running. Although both children were uncomfortable when giving evidence, both were telling the truth about the situation. The detail which Mr Banks was able to give about the pursuer staying overnight, such as in late 1998 when he had just moved into his home, was convincing as was that in relation to him seeing his father watching the FA cup in May 1999. The same applied to the July 2001 visit, when he had been training for the half marathon. Where there was a conflict, the evidence of the children and the defender should be preferred over that of the pursuer.

Decision
[33] The task of the Court is to determine when the parties ceased to cohabit, having regard to the statutory provision that cohabitation occurs only when parties are "in fact living together as husband and wife". That is, as the provision itself states, a matter of fact. The ultimate determination of the issue must depend upon the particular circumstances of a given case. As a generality, the Court must look at the issue objectively; no doubt taking into account the illustrative factors mentioned by Professor Clive. There may, of course, be many others which emerge as relevant. The intention of the parties cannot be determinative of the issue. In that sense, there is no absolute requirement for one of the parties to have decided that the marriage or relationship has run its course or that such a decision should have been communicated by one party to the other. However, the intention of the parties and any communication of them to each other may be relevant factors in the equation.

[34] The whole evidence in this case paints a depressing, if not distressing, picture of the progress of a marriage and the history of a family. The reasons for the decline in the parties' relationship were not explored at the proof, since they can have little or no bearing on the outcome of the case. What is clear, however, is that, from the very start, the pursuer's priority was his work. He appears to have applied himself to his employer's business with great vigour and determination. His dedicated application brought its rewards in his steady promotion within Ben Line and then Stena Drilling. His willingness to work for long periods abroad, taking little, if any, substantial periods of leave, and to do so for many hours, seven days a week, is remarkable. The importance of this to the outcome of the case is that it puts the parties' relationship into a context. That context is one which differs from many conventional marriages. The parties' cohabitation - the manner in which they lived together as man and wife - was, from the outset of the marriage, one which involved the pursuer being away from home for the vast majority of a given year. Even prior to his move to a shore based job in Aberdeen, the degree to which the pursuer socialised with the defender appears to have been limited to visits to his own family or work colleagues and the occasional work related function. Although there was some evidence that the defender and the children did have holidays in the United Kingdom, it was not evident that the pursuer went with them on these occasions. Rather, the overall impression from the evidence is that the family had very few holidays together with the pursuer. Indeed, the four trips spoken to amount to no more than about six weeks in the twenty years or so prior to the Aberdeen move. In outlining this pattern, the Court is not attempting to form any judgment on the pursuer's approach to life. That is not what this case is about. However, the pattern illustrates that this was not a marriage where the pursuer appears to have given any significant form of attention to family life. His work, and his dedication to it, dominated his thoughts and what happened at home was of secondary importance, if that.

[35] In analysing the evidence, I should state at the outset that I considered that in the witness box both parties were generally trying to relate what they perceived had occurred during the marriage. However, they did so very much from their own perspectives and with a degree of exaggeration that, at times, took their positions beyond reality. With certain limited exceptions in Mr Banks' case, which I will come to, I considered that both the children were generally both credible and reliable. Not surprisingly, both appeared quite deeply influenced by what had gone on during the marriage and both were able to remember, sometimes with emotion, what had occurred between the parties. I also accepted the pursuer's relatives as generally credible and reliable. I was less impressed with Mr Fraser, not because I consider that he was not trying to tell the truth but simply because, in his position relative to the pursuer, I do not think he would have been particularly interested in or, consequently, have paid any significant attention to the dynamics of the parties' relationship. Finally, and ultimately of some significance, I could find no reason to reject the evidence of Mrs Gordon. She was a friend of the defender, but seemed to be attempting to give such evidence as she felt able to do in a truthful manner.

[36] It is not suggested that the parties were not cohabiting prior to the pursuer's departure to Tunisia on 13 April 1993. It is of some importance then to analyse just what that cohabitation consisted of; since defining the nature of that cohabitation must play some part in the determination of when it ceased. Prior to that date, the pursuer had, until 1990, been working in Aberdeen and living at the house in Stonehaven. The parties had long since ceased to have sexual relations. They occupied separate bedrooms and had done so for perhaps five years. Although the pursuer himself did not go into great detail about his daily routine, Miss Banks did so with some feeling. I accept what she said about it. Coupled with the evidence of the defender, it is evident that domestic life at home in Stonehaven involved little positive input from the pursuer. He was often away for periods offshore on a rig. When on-shore, he worked long hours and weekends. He would return from work late, have his meal and then watch television until he fell asleep. He would be given a cup of tea by the defender and shortly afterwards retire to bed, waking early to return to the office. Both the defender and Miss Banks spoke to being unsure of his moods upon his arrivals home. Their descriptions of their feelings are illustrative of the tensions under which the parties cohabited. Overall, life inside the house must have involved little social interaction between the members of the family. The pursuer appears to have regarded home as little more than a convenience and, even at that stage, might have been equally at home in a hotel.

[37] The pursuer's move to Edinburgh in 1990 brought about some change in the parties' cohabitation. The pursuer spent his week-days at the Scandic Crown or other local hotel, returning home only at weekends. In the two or three years of this period, there was no suggestion that the pursuer spent any period of leave with the defender or the children, or indeed that he took any leave. The defender was able to produce the particulars of the Edinburgh houses. She was shown, and perhaps even given, these by the pursuer. Because of that, I accept the defender's position that the plan was for the parties to relocate to Edinburgh and not simply for the pursuer to buy his own accommodation in the city. I reach this conclusion for two reasons. First, it explains why the defender was shown the particulars, which she appears to have retained. Secondly, as the defender explained, it seems unlikely that the parties would have elected to finance two properties at that time, at least in the absence of any indication from the pursuer that he was separating from the defender. Again, despite the absence of any affection between the parties during this period, it is not suggested that they were not then living together as husband and wife. Their cohabitation was certainly limited and their relationship cold and perhaps increasingly meaningless in emotional terms. However, the pursuer's permanent address remained the Stonehaven house. His possessions remained there. He lived there at weekends when, no doubt, the defender attended to his practical physical needs, as she had always done, in the form of cooking, cleaning, and laundering etc. The parties' finances were inextricably intertwined, with all of the pursuer's salary going into the joint account operated almost exclusively by the defender.

[38] What then happened in April 1993, when the pursuer went to work in Tunisia? No doubt, by this time, the pursuer wanted to spend less time at home. If he had not always had one, he developed a desire to live a life with less ties to domesticity than hitherto. This, he considered, could be achieved by taking a foreign posting on the basis of single party status. He may have preferred this in any event, either from a fiscal point of view or simply because he enjoyed an unattached ex-patriot way of living, free from some of the more hum drum aspects of daily marital existence. Put simply, it was his preference to work abroad. At least by 1993, the pursuer was not a person inclined to compromise in that regard. Having elected to return to work abroad, it was an inevitable consequence that the pursuer would thereafter spend very little time at home. This was not so much prompted by a positive desire to avoid the defender, but because of the pursuer's commitment to his work and his desire to pursue it abroad in a manner of his choosing. The pursuer does not appear to have taken significant periods of leave when he was in Tunisia. Indeed, from what seemed to occur when the defender and Miss Banks visited, he does not even seem to have taken leave when they were staying with him for a week.

[39] I reject the pursuer's evidence that he handed back his keys, prior to leaving for North Africa, in some form of gesture of permanent departure. I accept the account of the defender and Miss Banks that the pursuer was not a man to carry any keys as a generality. I do so because the latter seems to fit in with the history of his relationship with the defender; that he worked and she attended to the family and house and would always be at home on his return. There was never any need for him to carry keys. Furthermore, even if he did happen to have his keys on his person when leaving for Tunisia, it would not have been at all surprising if he had left them in Stonehaven. There would have been no reason for him to carry his house keys abroad. I do not think that the pursuer regarded his decision to depart for Tunisia as significant in marital terms. He already spent little time with the defender. The life abroad suited him but, as he himself accepted, he took no steps to explain to the defender that he was leaving her. This was not because of reticence on his part. As Mr Fraser said, I suspect correctly, the pursuer is not a man who does things lightly. The pursuer did not say that he was separating from the defender - that he was no longer living with her - simply because he was not doing that. Despite extended absences abroad, the pursuer intended to maintain his base at home and to continue living as husband and wife with the defender. This was because that status and the practical advantages of doing so outweighed the financial and other practical disadvantages of doing otherwise. Partly because of this, he deliberately elected not to separate from the defender or to mention such a prospect to her. For the same reason, I consider that he elected to return periodically to the defender and the matrimonial home almost as a positive statement to the defender that they remained living together as husband and wife.

[40] The pursuer's departure for Tunisia did not amount to a cessation of the parties' living together as man and wife. The pursuer was away from home, as he had often been before, as a result of his employment. He returned to the United Kingdom periodically for short and long periods (see no. 6/9 p 1). He did not dispute that he did return to stay at the matrimonial home during this period. On balance, I consider that the pursuer understated the amount of time he spent at home at this time and accept the evidence of the defender and the children about this. As I will deal with in relation to later periods, apart from the pursuer's prolonged absences abroad, everything at home, notably the finances and possessions, remained the same. The pursuer did contact the defender regularly at home, no doubt primarily for his own purposes rather than to enquire into the welfare of the defender, and the defender did respond to his requests to send items out to him.

[41] So far as the Tunisian holiday is concerned, I accept the evidence of the defender that she was asked to go out by the pursuer and reject that of the pursuer that he only invited the defender as a chaperone for Miss Banks. Miss Banks was aged twenty three at the time and did not require a chaperone. Had the pursuer regarded his marriage as over and himself as separated, there was no need for him to have invited the defender to spend a week at his bungalow. I also accept the evidence of the defender and Miss Banks that the sleeping arrangements were that the parties shared the bedroom and Miss Banks slept in the livingroom. I do this because I doubt if the pursuer would have been inclined to change his own accommodation arrangements and because it is accepted that the parties subsequently shared a room in Phuket. Accordingly, I consider that the pursuer is either mistaken or not telling the truth about this limited matter. I do not consider that Mr Fraser would have been paying significant attention to the sleeping arrangements, when he called to pick up the pursuer, and reject his evidence, in so far as it pointed to the pursuer sleeping in the livingroom, as unreliable.

[42] The pursuer next went to Bangkok. Once more, I do not consider that this move, or anything that occurred prior to his return to the United Kingdom in late 1995, changed the parties' position so far as their continuing to live together as husband and wife is concerned. At the risk of repetition, I accept the defender's evidence and that of Mr Banks in particular, that the pursuer continued to return to the matrimonial home to stay overnight during this time, albeit only for a few nights. Once again, the pursuer invited the defender and Miss Banks out to visit him in Thailand and the parties, it is accepted, shared a bedroom for a period of days in Phuket. There was no need for the pursuer to invite the defender out for a holiday if he was no longer living with her. This was the pursuer continuing with married life even although he made little effort to be sociable, and certainly none to be affectionate, to the defender. In this regard, the fact that he chose to put the defender and his daughter in a different hotel in Bangkok for a few days reflected simply the pursuer's desire not to have his own living arrangements disrupted unless absolutely necessary. After all, when the parties were in Bangkok, there is no indication that the pursuer took any time off work to be with either the defender or his daughter. I do not accept that the pursuer told the defender that there would be no more visits to him abroad. The pursuer may have thought that and decided to implement such a policy, which had, after all, existed throughout most of the parties' life. However, Miss Banks did not speak to such an edict being laid down to the defender and it seems inconsistent with the pursuer's general approach of leaving life with the defender undisturbed, at least in relation to the parties' continuing marriage. It is true that the defender did start to holiday in Tenerife and bought a week's timeshare there. This can hardly be regarded as indicative of anything, given the pursuer's extreme reluctance to take any time off to spend with the family and certainly none away from the vicinity of his place of work. I do not regard the absence of the pursuer's name on the defender's passport as significant either. In circumstances where a couple are together, it is not unreasonable for them to specify those unlikely to be with them in a common calamity.

[43] At the end of his tour in Bangkok, it is accepted that the pursuer sent some furniture and ornament to the house at Stonehaven. If he had ceased living with the defender, there was no need to do this. He had relatives and friends in Scotland, to whom he could have sent any items he wished to purchase. Rather, what he was doing was again continuing life with the defender by sending home items designed to enhance the interior of the matrimonial home. I do not accept the pursuer's evidence that he had said nothing about these items to the defender prior to their arrival. The defender would have had to deal with certain delivery and customs charges and it seems most unlikely that she would have been able to do so without knowing what was coming in from Thailand and why. There is also the episode at Christmas 1995, when the pursuer stayed at the matrimonial home and did so for more than one night. If the pursuer had simply wanted to see his daughter, there was no need for him to visit or stay in the Stonehaven house. Although neither party was asked about this specifically, it did not seem to be disputed that, in terms of Miss Banks' evidence, during this stay, indeed on Christmas day itself, the parties went out as a couple to visit their longstanding friends, the Watsons. Here, then, were the parties living and socialising together as a couple, at least as much as they had done before. There remained, in addition, the other indicators of continued cohabitation; but I will deal with these again specifically in relation to the post 1996 period.

[44] On 27 January 1996 the pursuer resumed his career as Stena's Far East Operations Manager, having declined a shore based job in Aberdeen. There is a dispute about whether the parties discussed this. I accept the defender to the extent that there was some discussion about the pursuer not taking up a shore based option in Aberdeen and electing to return abroad. However, given what had occurred in the past, the discussion would not have been one which involved the defender in a meaningful dialogue. It would have been no more than the pursuer telling the defender what he had decided to do. I do not attach any material significance to the defender's decision not to remain in the United Kingdom. He was simply continuing life, including married life, as he had done for many years. Although by no means decisive, I do regard it of significance that there was still no suggestion that the pursuer made any statement to the defender, or indeed to his children, that he was ceasing marital life with the defender; that he was separating from her. Thereafter, once more, life remained as it had done, with the pursuer occasionally returning to the United Kingdom and calling in at Stonehaven, when he chose to do so. I accept the evidence of the continuation of this general pattern spoken to by the defender and the children, albeit that perhaps the number of visits home from the pursuer culminating in overnight stays may have declined gradually during the years after 1996. The sending out of requested items, the possessions of the pursuer (including his gun) remaining in the house at Stonehaven, the mail, the pursuer's whole salary continuing to be paid into the joint bank account managed by the defender (at least partly for the pursuer's benefit), are all indicators that the parties remained living together, albeit in the limited way that they had done for some time, as husband and wife. It is of note that the pursuer did remain on the Electoral Roll and that the defender did not apply for the single person's discount in Council Tax but only in the limited sense that these suggest that the defender did genuinely consider that the pursuer was still living with her in the Stonehaven house. Similarly, she continued to send cards and presents from the parties and the children as a unit. In contrast to this, the pursuer undoubtedly did classify himself as "separated" when applying for visas. However, such applications were in connection with his work abroad and he was in the habit of taking up posts on a single person basis anyway. Having regard to the evidence about his approach to work, I am not inclined to attach much weight to the pursuer's description of himself as separated in that context.

[45] The pursuer's continued overnight stays play an extremely significant part in the assessment of whether cohabitation continued. Without such stays, there can hardly any cohabitation. I have already commented that I could see no reason to reject Mrs Gordon's evidence. The significance of her testimony is that she saw the pursuer running past her window in the late 1990s. Although she might have been slightly wrong with her dates, I am not persuaded that she would have been so wrong as to permit her timings to slip from the late into the mid or early 1990s. If she had seen the pursuer so running, this would lend support to the notion that he remained living at the Stonehaven house, that is to say continuing to stay overnight periodically, well after 1996. If he was not, it would seem unusual for him to have gone to the house and then leave it to go on some athletic pursuit before returning to change back into ordinary attire. Although Miss Banks was not particularly positive about exactly when the pursuer ceased staying overnight, both the defender and Mr Banks were. Coupled with Mrs Gordon's evidence, I am persuaded by the preponderance of evidence that, in the period post 1996, the pursuer continued his overnight visits to the house. Taken with the other indicators, I am satisfied that, looked at objectively, the parties continued to live together as husband and wife after 1996. I therefore reject the pursuer's esto position.

[46] I should add that what occurred at the pursuer's mother's funeral did not suggest any cessation of cohabitation. The pursuer may not have stayed with the defender at that time, but this is hardly surprising given that he only flew in on the day of funeral and left on that day or the next. The defender and the children seem to have travelled to and from Glasgow on the same day. I accept also the evidence of the defender that it was she who told the pursuer of his mother's death since, if it had been the pursuer's brother, then the brother would have remembered that. He specifically said that it had not been him. I accept also that the defender did bring a suit with her for the pursuer, given Mrs Swinton's memory that there was mention of a suit. It is entirely possible that the pursuer would not have had an appropriate dark suit suitable for a Scottish November whilst living in the Far East. The parties' actions were more consistent with a couple still together than one living apart, even if there was little affection left in the relationship and none demonstrated at the funeral. Furthermore, it is perhaps of some significance that the pursuer accepted that he had not wanted to take any steps towards divorce whilst his mother, who was a practising Roman Catholic, was alive. I rather think he went further than this and avoided taking any material steps even towards separation (in a factual rather than legal sense) until at least the date of the funeral although, as will be seen, it was not long after his mother's death that he began to take significant strides in that direction.

[47] Turning to look at the defender's contention that the parties were still living together as man and wife in 2001, this is not tenable either. The defender maintains that she last prepared a meal for the defender in July/August 2001, and she is supported in that by Mr Banks. However, he did not stay overnight on that occasion and it is impossible to categorise his visits to the house, which did not involve overnight stays, as amounting to living together as husband and wife. As already observed, unless there is proof of an overnight stay at least, there is no living together at all. Mr Banks gave some detail of events in May 1999 and October 1998, when he maintains that the pursuer did stay overnight. However, I did not find this detail convincing. I thought his evidence about the two specific occasions slightly contrived. I consider that he at least exaggerated what might have been visits into overnight stays which he did not witness and which did not occur. So far as the May 1999 visit is concerned, it is conceivable that the pursuer watched the FA Cup at the Stonehaven house, but that does not point to him remaining overnight. Although by no means conclusive, there is no record of the pursuer returning to the United Kingdom for any significant time in May 1999. In relation to the October 1998 visit, Mr Banks said that he knew his father had stayed overnight because he was there. However, it was left slightly unclear as to whether he had actually seen his father at all on that occasion as distinct from being told by the defender that he was "upstairs sleeping". Again, there is no record of the pursuer being in the United Kingdom for any prolonged period in October 1988. Indeed, he appears to have spent much of that month in Australia. It is also significant that, in 1998, the pursuer had started to form a personal relationship with Judy Ong. She was, by this time, attending to the pursuer's travel arrangements and, I suspect, the pursuer would have been reluctant to be seen by her as staying overnight in the Stonehaven house. I am not persuaded, in all the circumstances, that the pursuer ever spent any time in Stonehaven overnight in late 1998 or 1999. In these circumstances, I reject the defender's primary contention for a 2001 date or indeed one later than the latter part of 1998. In so determining, I do not accept that, in the January 2003 conversation, the defender asked for a reconciliation, as such. It is likely that she did enquire whether the pursuer intended to return the live in the house. Perhaps, had he done so, the defender would not have been particularly surprised. However, it is equally likely that the pursuer did say that, by then, the parties' relationship had been over for a long time.

[48] Objectively, I consider that the parties ceased cohabiting sometime much later than 1996 but not as late as October 1998. It is not possible to determine from the evidence exactly when the pursuer stopped staying overnight at the Stonehaven house. However, there is one date, within the time span I have mentioned, on which a significant change in the parties' relationship did occur. The meeting at the Bank in May 1998 produced an alteration in the parties' financial regime. Until then, the whole of the pursuer's salary had been, in effect, handed over to the defender, since she was the person who operated the joint deposit account into which it was paid. The pursuer did not even have a cheque book for this account, although no doubt he could have obtained one had he wanted to. The parties also had substantial capital in joint deposit accounts. I accept that the pursuer did not state to the defender that he was effectively separating the finances or indeed that he was separating from the defender. However, what he did do was remove a large amount of capital from the deposit accounts and cease to pay his salary into the joint account. Instead, from May 1998 onwards, the defender received a fixed amount from the pursuer. Of course, no doubt, some couples may arrange their finances in this way in any event, but in the case of the parties to this action, this was a significant change in the manner in which they had dealt with each other when they had undoubtedly been living as husband and wife. Henceforth, the pursuer would retain the balance of his salary beyond the £4,000 paid into the account, and from which he also derived a further £1,000 by agreement. He also had exclusive use of the substantial lump sum taken from the deposit accounts. He would have accepted responsibility for paying his credit card account, which was linked to a local bank, from about this time. The new arrangement was not a complete separation of finances, of the type which might occur when parties agree to separate or where one person leaves, but it was sufficiently novel to mark a significant alteration in the parties' relationship.

[49] As already noted, I am satisfied that the pursuer did continue to return to stay overnight in the matrimonial home for some considerable time after 1996 and certainly throughout 1997. Whether these overnight stays continued beyond May 1998 is difficult to say with any certainty but, on balance, I find that they did not. Some of the factors, which indicated a continuing relationship, did persist beyond May 1998, albeit with diminishing frequency. The defender continued to pay for some things which benefited only the pursuer, such as certain insurances and professional fees. No doubt the payments in respect of the house, of which the pursuer was the sole proprietor, continued to be met from the joint account. It seems likely, from the defender's reference to the statements being in joint names, that the loan had been taken out jointly, albeit that it would have been the pursuer who would be the principal signatory on the standard security. The pursuer continued to keep garments and other possessions at the house, but by this time this was becoming increasingly irrelevant. The defender may have sent out the odd item, but I doubt whether, by this time, he was making the requests he once did. In short, May 1998, when the banking arrangements changed, is the best estimate of when the overnight stays ceased and the parties can be seen objectively as no longer living together as husband and wife. They had at that point begun to operate as if they were living separate lives, even although some practical conveniences persisted thereafter.

[50] For completeness, although it remains important for parties to state their positions accurately on record and a divergence between averment and proof can be significant in determining reliability or even credibility, I am not persuaded that any such divergences were significant in this case. Both parties' pleadings differed in certain respects from their evidence. In no instance did I find the differences of significance in the sense of suggesting that one of the parties had changed his or her story materially during the course of the action, as distinct from any divergence being attributable to 'mistranslation' from precognition to averment. I also did not find the defender's continued communications with the pursuer's relatives of assistance in determining the relevant date.

[51] In all these circumstances I will find and declare that the "relevant date" for the purposes of section 10(3)(a) of the Family Law (Scotland) Act 1985 is, taking a middle point in the month, 15 May 1998.

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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Banks v. Smith or Banks [2005] ScotCS CSOH_144 (08 November 2005) URL: http://www.bailii.org/scot/cases/ScotCS/2005/CSOH_144.html Cite as: [2005] ScotCS CSOH_144, [2005] CSOH 144, [2005] Fam LR 116