SHERIFFDOM OF SOUTH STRATHCLYDE DUMFRIES AND GALLOWAY

F127/04

	JUDGMENT OF SHERIFF PRINCIPAL B A LOCKHART
	in the cause
	JACQUELINE ELIZABETH NOLAN or MacDONALD
	Pursuer and Respondent
	against
	WILLIAM JAMES MacDONALD
	Defender and Appellant

Act: Mrs Carey, of Messrs John, Jackson & Dick

Alt: Ms Chalmers, of Messrs Leonards

HAMILTON: 30 March 2009

The Sheriff Principal, having resumed consideration of the cause upholds the appeal to the extent of deleting from the Sheriff's interlocutor of 13 October 2008 the words "sustains the seventh plea in law for the pursuer" and inserts "finds the terms of the Minute of Agreement between the pursuer and defender relating to financial provision were not fair and reasonable at the time it was entered into"; quoad ultra refuses the appeal and adheres to the Sheriff's said interlocutor; remits the cause to a procedural hearing before the Sheriff to determine further procedure; finds the defender and appellant liable to the pursuer and respondent in the expenses of the preliminary proof and the appeal; allows an account thereof to be given in and remits same when lodged to the Auditor of Court to tax and to report.

NOTE:

Background to the appeal

1.            This is an action of divorce at the instance of the pursuer and respondent (hereinafter referred to as "the pursuer"). It is opposed by the defender and appellant (hereinafter referred to as "the defender". The action relates to divorce, residence, interdict, interim aliment and capital sum. There is no crave for periodical allowance. There have been various Child Welfare Hearings.

2.            A Minute of Agreement (5/9 of process) was entered into between the parties as to financial provision. It was signed on 25 February 2005 by the pursuer and by 1 March 2005 by the defender. It was registered in the Books of Council and Session on 14 March 2005. In particular, the Minute of Agreement recorded that there would be no payment of aliment, no financial support after the divorce, no capital sum to the pursuer, the transfer of the matrimonial home to the defender and a discharge of any pension claims.. There was a discharge of further claims, and an agreement that the terms of the Agreement would remain in force notwithstanding the divorce. In clause 16 parties warranted there had been full disclosure.

3.            The Family Law (Scotland) Act 1985 section 16 provides:

"(1) Where the parties to a marriage have entered into an agreement as to financial provision to be made on divorce, the court may make an order setting aside or varying-

(a)    any term of the agreement relating to a periodical allowance where the agreement expressly provides for the subsequently setting aside or variation by the court of that term or

(b)    the agreement or any term of it where the agreement was not fair and reasonable at the time it was entered into."

(2)    The court may make an order- ...

(b) under subsection (1)(b) above, if the agreement does not contain a term relating to pension sharing, on granting decree of divorce or within such time as the court may specify on granting decree of divorce ..."

Accordingly a court cannot make an order setting aside an agreement as to financial provision on the grounds that it was not fair and reasonable at the time it was entered into until divorce has been granted or within such time as the court may specify thereafter.

4.            The pursuer introduced an amendment to the proceedings in late 2005 to the effect that the Minute of Agreement as to financial provisions should be set aside on the grounds that it was not fair and reasonable at the time it was entered into. The pursuer introduced a plea in law 7 as follows:

"The Minute of Agreement entered into between the parties on 1 March 2005 and registered in the Books of Council and Session on 14 March 2005 being not fair and reasonable at the time said Minute was entered into, ought to be set aside in terms of section 16(1)(b) of the Family Law (Scotland) Act 1985."

The defender replied by introducing plea in law 10 which is in the following terms:

"The Minute of Agreement entered into between the parties on 1 March 2005 and registered in the Books of Council and Session on 14 March 2005 being fair and reasonable at the time the said Minute of Agreement was entered into, ought not to be set aside in terms of section 16(1)(b) of the Family Law (Scotland) Act 1985 as craved."

5.            A preliminary proof was held on the question whether the Minute of Agreement was fair and reasonable at the time it was entered into. The Sheriff heard six days of evidence between 28 August 2007 and 17 March 2008. On 13 October 2008 she issued an interlocutor wherein she found in fact and law:

"(1) That the terms of the Minute of Agreement between the parties as to financial provision were not fair and reasonable at the time it was entered into by reason of the defender coercing the pursuer into signing the Minute of Agreement and by his failure to disclose the assets, liabilities and account for Billy's Taxis Lesmahagow Limited and the mortgage loan and outstanding debts in relation to the matrimonial home.

(2) The pursuer is entitled to an order in terms of section 16(1)(b) of the Family law (Scotland) Act 1985 setting aside all terms of the Minute of Agreement as to financial provision."

The Sheriff sustained the seventh plea in law for the pursuer and repelled the tenth plea in law for the defender which I have set out in para 4 hereof.

6.            In the case of Gillon v Gillon (No 2) SLT 954 Lord Hope, giving the opinion of the court at 987J said:

"If, however, he is in the pursuer's favour he can deal with the matter by repelling the defender's second plea in law and leaving the pursuer's second plea in law standing, reserving the whole matter as to whether an order should be made setting aside or varying the Minute of Agreement or any term of it until after proof on the merits has been heard. ..., there is nothing in s16.2(b) to prevent the court declaring that the Agreement or a term of it was not fair and reasonable at the time it was entered into, so long as it does not take the additional step of pronouncing an order setting aside or varying the Agreement or any term of it at the preliminary stage."

Accordingly the Sheriff should not have set aside the Minute of Agreement in her interlocutor of 13 October 2008. This was a preliminary proof. She could only make an order setting aside the Minute of Agreement on granting divorce. That issue had not yet been decided. Following the decision in Gillon v Gillon (No 2), the Sheriff was entitled to declare that the Minute of Agreement was not fair and reasonable at the time it was entered into but she could not, in view of the terms of section 16(1) and (2) of the 1985 Act, proceed to set aside the Minute of Agreement until decree of divorce had been granted.

7.            Parties were agreed on this procedural point. For that reason I have deleted that part of the Sheriff's interlocutor wherein she has sustained the seventh plea in law for the pursuer and the words "orders that all terms of the Minute of Agreement between the pursuer and defender relating to financial provision are set aside". In light of the terms of the Sheriff's decision, I have inserted in her interlocutor the words "finds that the terms of the Minute of Agreement between the pursuer and defender relating to financial provision were not fair and reasonable at the time it was entered into". I have adhered to her decision to repel the defender's tenth plea in law. This matter was not, as I say, the subject of argument at the appeal, which proceeded on other grounds.

8.            The Sheriff, after the preliminary proof, held that the terms of the Minute of Agreement between the parties as to financial provision were not fair and reasonable at the time it was entered into by reason of the defender coercing the pursuer into signing the Minute of Agreement and by his failure to disclose assets, liabilities and accounts for Billy's Taxis Lesmahagow Limited and the mortgage loan and outstanding debts in relation to the mortgage home.

9.            As far as the question of coercing the pursuer into signing the Minute of Agreement is concerned the Sheriff found in fact:

"(17) The pursuer was advised by her solicitor, Mrs Linda George, not to enter into the Minute of Agreement. On 4 February 2005 the pursuer attended at Mrs George office with her mother, at the request of Mrs George. Mrs George again advised the pursuer against entering into the Minute of Agreement. The pursuer's mother advised her not to enter into the Minute of Agreement.

(18) In January and February 2005 the defender repeatedly telephoned and visited the pursuer, shouted and swore at her and subjected her to verbal abuse in order to coerce her into entering into the Minute of Agreement. The pursuer was frightened of the defender.

(19) During the week prior to 25 February 2005 the defender visited the pursuer's home uninvited and in the presence of the pursuer's sister, Miss Kerry Nolan and the parties' children, shouted and swore at the pursuer, demanding that she sign the Minute of Agreement.

(20) On 24 February 2005 the defender visited the pursuer's home uninvited and in the presence of the pursuer's friend, Miss Lisa Kane, shouted at the pursuer to sign the Minute of Agreement. The pursuer was frightened of the defender. The same day she telephoned her solicitor and made arrangements to sign the Minute of Agreement at her solicitor's office the following day.

(25) The pursuer has a long standing medical history of anxiety and stress which subsisted during her marriage to the defender and at the time the Minute of Agreement was entered into.

(26) On 23 February 2004, in the present action, interim interdict was granted against the defender ad interim preventing him from personally molesting the pursuer; this interim interdict was continued on 18 March 2004 until further orders of court.

(27) The defender was convicted after trial in Hamilton Sheriff Court of breach of the peace on 4 September 2004 by shouting swearing and uttering threats of violence to the pursuer on the telephone. He was convicted after trial in Hamilton Sheriff Court of a further breach of the peace committed in March 2005, after the Minute of Agreement was entered into, in which the pursuer was also the complainer."

These findings are elaborated in para 8 of the Sheriff's note:

"The history of the relationship between the defender and the pursuer, on the defender's own evidence involved him shouting and swearing at the pursuer. He accepted that following their separation he repeatedly contacted her with the purpose of securing her agreement to transfer the matrimonial property, and that during February 2005 he telephoned her daily, but not more than three times a day, for this purpose. I found the pursuer, Miss Kane and Miss Nolan credible and reliable witnesses as to the defender's abusive conduct at the pursuer's home during the week before and on the day before she signed the Minute of Agreement. I accepted their evidence that the pursuer was frightened of the defender on these occasions and Mrs George's view that her client was frightened, apprehensive and anxious at the time she instructed her with regard to the Agreement. I also took into account the pursuer's medical history and my conclusion that this made her more vulnerable to harassment from the defender. The defender was convicted of a breach of the peace committed on 4 September 2004 by shouting and swearing at the purser; he was subject to an interim interdict from 23 February 2004 prohibiting him from personally molesting the pursuer. The breach of the peace and the descriptions in evidence of his contact with the pursuer clearly represented breaches of that interim interdict. I was satisfied on the balance of probabilities that the defender deliberately set out to and did coerce the pursuer into entering into the Minute of the Agreement.".

10.        As far as the defender's failure to disclose assets, liabilities and accounts are concerned the Sheriff found in fact:

"(23) The matrimonial home at Auchenheath was valued by D M Hall, surveyors on 8 November 2004; no 5/19 of process is the valuation. At that date the house was substantially built. A number of finishing works were required to complete the house. These were installation of some electrical and sanitary fittings, completion of some internal joinery, installation of central heating boiler and some radiators, location of steps to front and rear doors, completion of outside patio door, landscaping, completion of driveway, and formation of the garage floor. The house is a two storey dwelling with four reception rooms, four bedrooms, kitchen, two bathrooms and a cloakroom. It's value on 8 November 2004 was £190,000. It's value on completion of these works would be £230,000.

(24) Prior to entering into the Minute of Agreement, the defender did not make full disclosure to the pursuer's solicitors of the assets, liabilities and accounts for Billy's Taxis Lesmahagow Ltd, the family debt or the matrimonial home and expenditure on completion of the matrimonial home."

In her note the Sheriff stated inter alia:

"4.2 Mrs George felt that she did not have the full picture regarding the matrimonial property and debts and was quite sure her client did not understand what was happening either. ... Mrs George's recollection was that there was still insufficient vouching for this and she wished to see the taxi business accounts for three years prior to separation. ...

9. Both the pursuer and the defender were legally represented throughout the negotiations which preceded the Minute of Agreement and when it was entered into. I found Mr Bell's evidence on the question of the level of disclosure regarding the finances of the taxi business and the matrimonial home vague and lacking consistency and therefore unreliable. The enclosures sent to Mrs George with his letters of 30 September 2004 and 5 January 2005 (6/5/1 and 2 of Process) do not disclose the full financial picture in relation to the assets and liabilities of the taxi business, the personal debts of the parties or the debt on the house. ... I concluded in these circumstances it was incumbent upon him to make full disclosure of the true financial position in negotiation of the Minute of Agreement and he had not done so.

9.1 I found Mrs George a considered and reliable witness as to her advice and the events which preceded the conclusion of the Minute of Agreement. I concluded she had given the pursuer sound advice not to sign the Minute of Agreement as not enough information was available to found an agreement in January 2005."

11.        The Minute of Agreement sets out that the pursuer would receive no financial support after divorce, there would be no payment of a capital sum and the valuable matrimonial home would be transferred to the defender. She would have no right to participate in any pension rights. The Sheriff found that she was coerced by the defender into signing the Minute of Agreement at a time when she had been advised by her solicitor not to sign it and when no details were made available to her regarding in particular the assets and liabilities of the Taxi business, the mortgage debt on the matrimonial home and expenditure on completion of the matrimonial home.

12.        In these circumstances the Sheriff held, on the basis of the evidence led at the preliminary proof, that the terms of the Minute of Agreement were not fair and reasonable at the time it was entered into. It is against that decision that appeal is now taken by the defender.

Grounds of appeal

13.        On the day of the appeal, the solicitor for the defender lodged amended grounds of appeal, of which there were then seven. Ground of appeal 5 referred to the matter which I have already dealt with, namely that it was only open to a sheriff to hold, after preliminary proof, that the terms of the Minute of Agreement were not fair and reasonable at the time it was entered into. It was premature to then proceed to set aside the Minute of Agreement as decree of divorce had not been granted. As I have already said, that was not disputed.

14.        I now propose to deal with each ground of appeal separately. I will record the submissions for both parties and give my decision in respect of each ground of appeal separately. This note will end with a "conclusion" setting out the result of the way in which I have dealt with the various grounds of appeal.

First and second grounds of appeal

15.        Solicitor for the defender indicated that she proposed to deal with the first and second grounds of appeal together. They were in the following terms:

(1) The onus of proof falls upon the pursuer to establish on the balance of probability that the agreement was not fair and reasonable at the time it was entered into. It was submitted that the pursuer failed to bring sufficient evidence to demonstrate that the Agreement was not fair and reasonable at the time that it was entered into. In particular the Sheriff failed to attach sufficient weight to the fact that the pursuer was a joint owner of the property, a joint mortgagee, a director in the business and she herself, or her agent could have obtained such evidence.

(2) The Sheriff failed to take proper account of the pursuer's ability to obtain such information herself when considering the question of the defender's failure to disclose, if any.

Submissions for defender and appellant

16.        It was submitted that the onus was on the pursuer to elicit sufficient evidence from which a conclusion could be drawn that the Agreement was not fair and reasonable. I was referred to the case of Gillon v Gillon (No 3) 1995 SLT 678. It was suggested it was not for the defender to show that it was fair and reasonable. It was submitted that the Sheriff's findings in fact and judgment were in error in that she failed to make reference to the onus which fell on the pursuer. It was submitted that the pursuer had not led sufficient evidence to satisfy the court that the Agreement was not fair and reasonable at the time it was entered into regarding the financial aspects of the parties' assets and debts. There was a complete lack of evidence from the pursuer in relation to these issues. The pursuer had advanced no evidence or produced any vouching at all in respect of the matrimonial property and debts upon which she contends that the terms of the Agreement reached were not fair and reasonable.

17.        In her judgment the Sheriff made reference to lack of information and values but she failed to go further and state that the onus fell on the pursuer to prove these matters and that she had taken into account that the pursuer had not done so. It was submitted that there was no evidence that, at the time the Agreement was entered into, or even at the hearing of evidence, from the pursuer regarding vouching and valuations to tend to show that the Agreement was not fair and reasonable. It was submitted that was fatal to the pursuer's case.

18.        It was submitted that the Sheriff failed to attach sufficient weight to the fact that the pursuer was the joint owner of the matrimonial home, a joint mortgage holder in respect of the debt on the matrimonial home, a director in the taxi business and as such should have been aware of the values of these assets. If not, she should have been able to obtain information in relation to these matters. There was no legal bar to prevent her obtaining such information either herself personally or through her legal agents.

19.        I was referred to para 3.1 of the Sheriff's note on page 15:

"The evidence of Mrs George and Mr Bell (the parties' legal agents) were in agreement that both were aware of the matrimonial home being built at Auchenheath, of the parties' joint mortgage over the party, of the taxi company and that the pursuer was a director of the company."

It was submitted that the pursuer should have been able to obtain any information she required as a result of her position or to instruct her agent to obtain such information. It was submitted the Sheriff failed to attach sufficient weight to this. Finding in fact and in law 1 referred to the Agreement being not fair and reasonable by his (the defender's) failure to disclose the assets and liabilities and accounts for Billy's Taxis Lesmahagow Limited, the mortgage loan and outstanding debts in relation to the matrimonial home. It was submitted that that was a wrong conclusion. The pursuer was able to obtain information herself or through her agent. The Sheriff had failed to attach proper weight to this factor in reaching her conclusion. Nowhere in her judgment did the Sheriff address the question of the pursuer's ability to acquire that information. It was submitted the Sheriff had given no consideration to this material issue. It was submitted this was not a case where the defender had refused to disclose the existence of an asset which formed matrimonial property such as a pension or a savings account or some matrimonial property solely within his control. Had that been the case, it would be correct for the Sheriff to found upon his failure to disclose. I was referred to the case of McKay v McKay in Airdrie Sheriff Court where the Sheriff Principal in his judgment of 29 June 2006 held that there had been a case of failure to disclose a material item of matrimonial property on the part of the defender. In this case, however, there was nothing to prevent the pursuer obtaining such information personally or through her agents.

20.        It was submitted that the pursuer's agent had admitted that she could have written for the information herself - see notes of evidence 354/14:

"I suppose I could have written to them ..."

If the information requested had not been provided for any reason, the pursuer or her agent were in a position to write for the information themselves. It was submitted that this was a material matter in this case. It meant that the Sheriff could not make a finding that there had been a failure to disclose.

21.        Evidence was heard regarding a number of productions lodged on behalf of the defender regarding the state of the parties' assets and liabilities. It was pointed out to me that this matter was also the subject of the sixth ground of appeal which was in the following terms:

"In her judgment the learned Sheriff refers to the defender's 6th inventory of productions at page 21. The Sheriff goes on to comment that "no evidence was led from any witness in respect of this letter" (production 6/6/2/c at page 24) and further, makes a similar comment in respect of production 6/6(2)(g-j) at page 26. The Sheriff is factually incorrect in so stating as evidence was led from the defender and his witness Mr Bell on these matters."

Solicitor for the defender did concede that these witnesses were not the authors of the letters and there was no evidence led from the authors. However, it was submitted that the Sheriff was not correct in saying that there was no evidence at all from any witness.

22.        I was also referred to two letters of 30 September 2004 and 5 January 2005 from Leonards to Linda George, Solicitor (6/5/1 and 6/5/2 of process). While these letters were spoken to by the defender and Mr Bell, they were not put to Linda George as her evidence had been concluded before these letters were introduced. She was not however, recalled on behalf of the pursuer to give evidence. However it was pointed out that Linda George at 348/10 said:

"We have got copy correspondence, copy invoices and demand letters from some of the tradesmen involved in the purchase of the house, which is fine but what does it mean in the great scheme of things Mr Bell? How can I fit that into what the value of the house is? How much is due?

Q.            Yes?

A.            So while it is there, it is not enough, it is not sufficient for me to move matters forward."

It was pointed out that Linda George said at 346/14

"I would have expected all the information to be forwarded to me, and I would use that information to make up the standard sort of schedule of assets and liabilities."

The position of solicitor for the defender was that the house was a joint asset. Even if such information provided had not been sufficient for Mrs George, she could have made other enquiries. She was entitled to write to the accountants in respect of the taxi business. The pursuer was a director. Linda George was in a position to make enquiries on behalf of the pursuer as to the position if she felt there was insufficient information.

23.        Bank statements had been produced at 6/6/2(d-j). These were clearly in the name of Mr and Mrs MacDonald. The account numbers would have enabled the pursuer to access information herself. It was submitted that the pursuer was able to get information herself as the bank accounts were in joint names, there was a joint mortgage and they were joint proprietors of the business. It was submitted that it was not appropriate for the pursuer to make a case partly on a request for information in respect of joint assets and debts, say that these had not been produced, and then claim that therefore the Agreement was unfair and unreasonable. This was particular true where the pursuer was represented by an experienced family lawyer and there had been a period of negotiation between the parties in the region of one year before the written Agreement was entered into.

Submissions for the pursuer and respondent

24.        Solicitor for the pursuer noted that the main thrust of the argument for the defender in respect of the first two grounds of appeal was that the pursuer did not produce evidence to prove the value of the matrimonial property and that there was an onus on her to do so. It was submitted that there was nothing in section 16(1) of the Family Law (Scotland) Act 1985, to which I have referred, or the case of Gillon v Gillon (No 3) 1995 SLT 678 which placed any onus on the pursuer. Section 16(1) provides:

"The court may make an order setting aside or varying - ...

(b) the agreement or any term of it where the agreement was not fair and reasonable at the time it was entered into."

The principles which the court required to apply in the case of Gillon v Gillon (No 3) supra are:

"(a) The agreement had to be examined from the point of view of both the fairness and reasonableness;

(b)     The examination had to relate to all the relevant circumstances leading up to and prevailing at the time of the execution of the agreement including among other things the nature and quality of the legal advice given to either party;

(c)      Evidence that some advantage had been taken by one party of the other by reason of the circumstances prevailing at the time of the negotiations which might have a cogent bearing on the determination of the issue;

(d)     The court should not be unduly ready to overturn agreements validly entered into; and

(e)      The fact that it transpired that an agreement had led to an unequal and possibly very unequal division of assets did not of itself necessarily give rise to any inference of unfairness or unreasonableness."

25.        Particular emphasis was placed on the second principle and the requirement of the court to examine "all the relevant circumstances leading up to and prevailing at the time of the execution of the agreement ...". It was submitted that the court required to consider all the circumstances in the round and there was nothing in Gillon which required the pursuer to prove the value of the matrimonial property. It was accepted that there was some merit in what the defender stated to the effect that the pursuer was the joint owner and director of the business and, on any commonsense view, she might have had access to certain information. However, on examination, even on the defender's own evidence, he closed down the taxi business and opened a fresh business. In particular I was referred to Linda George's evidence at 3353/3:

"Q. Initially when she instructed you that was the case, and she was also a joint owner of the property. Did that enable you to obtain information such as details from the bank regarding the mortgage and the business accounts?

A. So far as the business accounts were concerned, as far as I understand it, and I am not sure - she was a director of the company. She was removed from that position, But I didn't have an "in" to get to the company accounts ... As I understand it, I think Mr MacDonald's father was also in some sort of ownership or managing director or whatever, but there was not a possibility of me getting to the accounts."

The court required to reach a conclusion on these issues on the basis of all the evidence which had been led.

26.        The Sheriff stated at page 31 para 9.1:

"I found Mrs George a considered and reliable witness as to her advice and to events which preceded the conclusion of the Minute of Agreement. I concluded she had given the pursuer sound advice not to sign the Minute of Agreement as not enough information was available to found an agreement in January 2005."

The Sheriff also states at para 9:

"Similarly he continued after the separation to operate the taxi company, took the decision alone to cease trading and continued a taxi business in another corporate vehicle. I concluded in these circumstances it was incumbent upon him to make full disclosure of the true financial position in negotiation of the Minute of Agreement and he had not done so."

27.        It was submitted that the Sheriff, in the exercise of her discretion, had preferred the evidence of the pursuer's agent, had preferred the evidence of the pursuer to the defender and applied her mind reasonably, responsibility and appropriately to the whole matter. She had taken the view that it was incumbent in the whole circumstances upon the defender to make disclosure. There had been no adequate disclosure of what expense there had been on the matrimonial property. It was submitted the Sheriff had applied her mind to the whole circumstances and concluded at para 9.2, page 32:

"Insufficient evidence was led before me to enable any finding to be made regarding the true extent of the matrimonial property and the debts at the time the Agreement was entered into. The defender's verbal testimony about the financial affairs of the taxi company and the house was riddled with inconsistencies and neither credible nor reliable."

28.        As far as ground 6 is concerned (which was incorporated into the argument of ground 2 and the information in the defender's sixth inventory of productions), it was submitted the Sheriff was perfectly entitled to take the view that there was no evidence from the authors of these letters and therefore they could not be taken into account. In any event some of the productions were not lodged until during the defender's cross-examination after Linda George had given evidence. As far as the inventory was concerned Mr Bell at 601/3 was asked:

"Have you had sight of these before. He replied. Well certainly some of them ring bells with me from my dealings with the case Yes ... There was a significant amount of correspondence passing back and forth."

29.        It was submitted there was no onus on the pursuer to lead evidence as to the specific matrimonial property. The simple answer as far as the defender was concerned would be for himself to have lodged full specification and vouching of the matrimonial property which would allow the court to conclude that the Minute of Agreement was fair and reasonable. This had not been done.

Decision on first, second and sixth grounds of appeal

30.        In terms of the second principle set out in Gillon v Gillon (No 3) supra the court is required to examine all the relevant circumstances leading up to and prevailing at the time of the execution of the agreement. It might well properly be said that the pursuer, as a director of the initial taxi business, as a joint owner of the matrimonial home and a joint mortgage holder could herself have obtained certain information either herself or through her agents. However the specific debts of the taxi business were not something which she would have day to day responsibility for. The accounts incurred in completion of the matrimonial home were solely carried out by the defender. Accordingly not all the relevant information could have been obtained by the defender herself or through her agents without the cooperation of the defender.

31.        The defender, according to the Sheriff's findings, verbally coerced the pursuer into signing the Minute of Agreement. He did so at a time when the pursuer did not have a full statement of matrimonial assets and liabilities on which she could decide whether or not the proposal was fair to her. In the absence of such information she was properly advised by her solicitor not to sign the Agreement. As the Sheriff put it:

"I found Mrs George a considered and reliable witness as to her advice and the events which preceded the conclusion of the Minute of Agreement. I concluded that she had given the pursuer sound advice not to sign the Minute of Agreement as not enough information was available to found an agreement in January 2005."

The argument presented on behalf of the defender suggests that there was plenty of time for the pursuer to obtain all the information that she needed to satisfy herself, before signing the Agreement, whether the terms were fair and reasonable and that is what she should have done. But that was not the case. The Sheriff makes it clear that, at the time the Agreement was signed, the pursuer was being coerced by the defender to sign it. At that time there was insufficient information available to allow her solicitor to advise her whether the proposed Agreement was fair and reasonable and should be signed. The Sheriff was satisfied that legal advice tendered to the pursuer not to sign the Minute of Agreement was sound. In these circumstances, if the defender's position was that the Agreement was in fact fair and reasonable and that it should have been signed by the pursuer forthwith on request by him, it was open to him to provide evidence in support of his tenth plea in law that:

"The Minute of Agreement entered into between the parties on 1 March 2005 and registered in the Books of Council and Session on 14 March 2005 being fair and reasonable at the time the said Minute of Agreement was entered into ought not to be set aside in terms of section 16(1)(b) of the Family Law (Scotland) Act 1985 as craved."

32.        It is my opinion that the Sheriff was perfectly entitled to hold, in the particular circumstances which existed at the time the Minute of Agreement was entered into, that at that time it was not fair and reasonable to expect the pursuer to sign the Agreement in the absence of disclosure to her of the assets, liabilities and accounts of Billy's Taxis Lesmahagow Ltd and the mortgage loans and the outstanding debts in relation to the matrimonial home. The defender failed to satisfy the Sheriff in terms of his plea in law number ten that the terms of the Minute of Agreement were fair and reasonable at the time it was entered into. She was entitled to repel that plea in law.

Third ground of appeal

The Sheriff attached too much weight to the defender's current situation. The Sheriff comments on what the defender did after the separation.

Submissions for the defender and appellant

33.        It was submitted that the defender's current position was irrelevant in considering whether the Agreement was fair and reasonable at the time it was entered into in February 2005. It was submitted that each party was entitled to a fair share of the matrimonial property at the relevant date (5 February 2004) and as far as the Minute of Agreement was concerned, the question of fairness and reasonableness should be considered at the time the Agreement was entered into - not at the time of the proof. The pursuer's position at the time the Agreement was entered into was that he was in receipt of benefits and that was conceded by the defender. That was the only relevant information that the Sheriff should have taken into account in deciding whether the Agreement was fair and reasonable. The Sheriff's finding in fact 28 on page 8 was in the following terms:

"The pursuer now resides in rented accommodation with the three children of the marriage. She is unemployed and supports herself and the children from state benefits. The defender resides in the former matrimonial home at Auchenheath of which he is the sole owner. He continues to run a taxi business known as "J J Cars Ltd". The taxi business pays the defender's mortgage on the house at Auchenheath and pays him an income. He runs a car for his personal use. Since the parties' separation he has annually taken the children abroad on holiday to Magaluf and Florida. He makes no contribution towards his children's maintenance."

It was submitted that this finding in fact was irrelevant.

Submissions for the pursuer and respondent

34.        It was submitted that these issues were relevant. The Sheriff had reached conclusions reasonably and based on the evidence she was entitled to make these findings as they had a bearing on the parties' respective credibility. The Sheriff had not used the findings to justify why she was setting aside the Minute of Agreement.

Decision on the third ground of appeal

35.        As I read the Sheriff's decision, she does not use the fact that the pursuer is now maintaining herself and the three children in rented accommodation on state benefits, while the defender lives a relatively affluent lifestyle in an expensive privately owned house, of which the pursuer surrendered her one half share to him, and has the benefit of a car and overseas holidays, to support her conclusion that the terms of the Minute of Agreement were not fair and reasonable at the time it was entered into. It is, however, a matter of comment that the pursuer, having in the Minute of Agreement renounced her right to financial support after divorce, her right to a capital sum, her right to participate in any pension claims and having transferred her share of the matrimonial property to the defender, now finds herself and her children living in straightened circumstances compared to the lifestyle of the defender.

Fourth Ground of appeal

The Sheriff at paragraph 9.2 page 31 of her decision states that "the terms of the Minute of Agreement are not of themselves necessarily unfair and unreasonable". If the pursuer had failed to bring sufficient evidence to established this, then the Sheriff cannot thereafter go on to consider the relevance of any coercion. Esto the Sheriff was entitled to consider the question of coercion, she misdirected herself in law by making such a finding based on the evidence.

Submissions for defender and appellant

36.        I was referred to para 9.2 of the Sheriff's judgment at page 31.

"The terms of the Minute of Agreement are not of themselves necessarily unfair and unreasonable. If there was negative equity in the taxi business and in the matrimonial home and other matrimonial debts, it might be fair and reasonable for the pursuer to transfer her interest in the matrimonial home to the defender in return for relief from those debts. I am satisfied that at the time the Minute of Agreement was entered into there was insufficient disclosure by the defender to the pursuer's solicitor in relation to these matters to found an agreement equitably dividing the matrimonial property."

37.        It was submitted that, if indeed, the terms were not of themselves necessarily unfair and unreasonable, the Sheriff should look no further. This was particularly so as the pursuer had advanced no evidence orally or vouched regarding the matrimonial property or debts which would tend to say otherwise i.e. that the Agreement was not fair and reasonable at the time it was entered into. The Sheriff goes on at para 19.2 at page 31:

"The defender, on his own evidence, continued to built the matrimonial home and incurred debt in relation to it for a year following the parties' separation ... Similarly, he continued after the separation to operate the taxi company, took the decision alone to cease trading and continue a taxi business in another corporate vehicle. I concluded in these circumstances it was incumbent upon him to make full disclosure of the true financial position in negotiation of the Minute of Agreement and he had not done so."

38.        It was submitted that if, as the Sheriff had stated, the terms of the Minute of Agreement were not of themselves necessarily unfair and unreasonable, this was fatal to the defender's case. The Agreement did not specify sums of money or values which would tend to suggest an unequal division had been reached. In the absence of that, and in the absence of the pursuer leading sufficient evidence to prove that there was an unequal division, the question was posed as to how it could be said that the Agreement was unfair and unreasonable at the time it was entered into. It was submitted that this was a stumbling block which the Sheriff had recognised, but failed to deal with properly in her judgment. Having recognised this, it was submitted that the relevance of evidence of pressure and coercion had no bearing on whether or not, on the face of it, this was an unreasonable Agreement. If the Agreement was not seen to be unfair and unreasonable of itself, the other matters had no significance. The Sheriff was only entitled to look at the question of coercion or pressure if, on the face of it, the Agreement was not fair and reasonable. This was not the case.

39.        It was further submitted that the conduct by the defender held by the Sheriff to have been proved was not unlawful or illegal. The defender's concerns were in respect of the parties debts and that the pursuer and the children would get nothing. (I understood this to be in the context that if the property was conveyed wholly to the defender, it was said he would be able to obtain a loan to discharge the debts). The pursuer herself spoke to the defender's stressing these concerns to her in an abusive and aggressive way. The Sheriff had made certain findings in relation to that. It was submitted that, at its highest, the defender's conduct should not been seen as coercion when he merely impressing upon her the need to resolve matters a year down the line.

40.        I was referred to the judgment of Lord Clarke in the unreported case of The Advocate General for Scotland v Bennett dated 19 December 2003. In that case the argument was advanced that an agreement should not have effect as a result of alleged coercion. The agreement related to payment of VAT. The defender's pleadings were in the following terms:

"Millar (VAT Inspector) was verbally aggressive towards the defender and stated that the defender was lucky he had not been involved at the start or the defender's feet would not have touched the ground. The defender was put in a state of fear by said statement. He felt threatened with imprisonment and feared the collapse of his business and family ... Millar worked on the defender's nervous condition by shouting at the defender. ..."

41.        I was referred to the Sheriff's judgment in this case:

"... prior to the signing of the Minute of Agreement on 25 February 2005, the defender repeatedly telephoned her and came to her home to demand she sign the agreement. He was threatening and abusive and she felt desperate. Mrs George advised her to call the police. The pursuer and her sister, Miss Kelly Nolan, gave evidence of a visit to the pursuer's home by the defender during the week before the pursuer signed the Minute of Agreement. The pursuer had switched her telephone off because of repeated calls from the defender. He then arrived at the house and burst in when Miss Nolan answered the door. He shouted and swore regarding his telephone calls not being answered and told the pursuer she needed to get everything signed over by tomorrow. .. Miss Nolan gave evidence that the defender was very nasty to the pursuer "right up in her face". Miss Nolan asked him to stop and he swore at her. She described the pursuer and shaking and terrified. The pursuer said she would sign the Agreement if the defender would leave her alone and leave the house."

42.        And in para 2.4 which related to the day before the pursuer signed the Minute of Agreement:

"The pursuer and her friend Miss Lisa Kane, gave evidence that later the same day the defender walked into the pursuer's house, the front door being open as there were workmen there. The defender shouted at the pursuer to get everything signed over, she had until tomorrow to sign it all over, that he did not want her kids to grow up with nothing and that she was off her head. Miss Kane described the defender getting closer and closer to the pursuer, who moved across the kitchen to get away. Miss Kane asked him to move back from the pursuer. She described the pursuer as terrified."

43.        It was submitted that there was no evidence in the Sheriff's judgment that the defender had been evasive, concealed matters, or tried to trick the pursuer. He could not as they were joint assets and liabilities. Even if the defender had produced the information, it was equally open to the pursuer to clarify the matter given her legal position. In particular I was referred to 123/19 when the pursuer was cross-examined:

"Q. What issues, were there financial issues to be resolved.

A. Yes, because my solicitor advised me to go and close all the bank accounts or freeze the bank accounts at that time and I hadn't done so because all I wanted was the kids back"

At 129/1 the pursuer acknowledged the loan of £108,000 in joint names. At 129/19 she stated that she spoke to the bank manager and was told the taxi business was in debt. It was submitted she was equipped to obtain information either directly from the bank and the accountants either directly or with the assistance of her agents.

44.        I was also referred to para 2.1 of the Sheriff's judgment where she described the defender:

"suddenly wanting everything signed over to him because he alleged that they were in so much debt. In January and February 2005, he telephoned her almost every day regarding signing everything over and threatened that their children would get left with nothing. He repeatedly told her the taxi business was in debt and there was no money to do any further work on the house. In his telephone calls, the defender was abusive, aggressive, used bad language and accused her of jeopardising their children's future."

45.        It was submitted, even if the Sheriff held that as a credible and reliable account and preferred that evidence to the evidence given by the defender, there was still not a true case of coercion because the defender was not threatening anything illegal or unlawful - he was concerned about the parties' financial position and in turn the children's financial position. He was merely making a factual statement of the parties' dire financial circumstances. I was referred to Lord Clarke in The Advocate General v Bennett supra at para 38:

"Moreover, and in any event, I agree with counsel for the pursuer's submissions, under reference to authority, that extremely strong averments of wrongful conduct on the part of the other party to compromise agreement are required before the party seeking to avoid such agreement will be given relief."

And at 39

"The defender's case based on the undertaking having been vitiated by force and fear, is, in my judgment, also wholly irrelevant ..."

Lord Clarke at para 17 had also commented:

"There, clearly, has been considerable opportunity for the defender to consider the whole matter, seek advice and reflect on the position, between anything that had occurred at the meeting and the granting of the undertaking by him ..."

46.        It was submitted that in this case the Agreement was signed in the pursuer's solicitor's office. The defender had attended at the pursuer's house the day before telling her to sign the Agreement or the children would get nothing. It was not a situation, it was submitted, of the defender "holding a gun at her head and telling her to sign it". There was the opportunity for the pursuer to seek legal advice. There had been a course of negotiations. The Agreement was signed in the pursuer's solicitor's office.

47.        It was submitted that what the defender was threatening was that the parties would be left with nothing, as would the children because of the high level of debt. There were no threats of violence. It was concern for the consequence both for the parties and the children that would arise if the Agreement was not signed that caused him to act in this way. It was submitted that even if the defender had been verbally aggressive to the pursuer, this was to reinforce the fact that the parties' dire financial position. He was not taking unfair advantage of her in these circumstances, nor was he doing anything that was illegal or unlawful.

48.        It was accepted that the defender had been convicted of breach of the peace in respect of a matter involving the pursuer which occurred on 4 September 2004. There were no charges relating to anything that happened in the period culminating with the signing of the Agreement in January and February 2005. The defender's other conviction for breach of the peace involving the pursuer post-dated the signing of the Agreement. It was submitted that the Sheriff was not entitled to make a finding of coercion based on the evidence.

Submissions for the pursuer and respondent

49.        I was referred to 9.2:

"The terms of the Minute of Agreement are not in themselves unfair and unreasonable. If there was negative equity in the taxi business and in the matrimonial home and other matrimonial debts, it might be fair and reasonable for the pursuer to transfer her interest in the matrimonial home to the defender in return for relief from these debts. I am satisfied that at the time the Minute of Agreement was entered into there was insufficient disclosure by the defender to the pursuer's solicitor in relation to these matters to found an Agreement equitably dividing the matrimonial property. Insufficient evidence was led before me to enable any finding to be made regarding the true extent of matrimonial property and debts at the time the Agreement was entered into."

50.        It was submitted that if the sentence had read "in terms of the Minute of Agreement are not necessarily unfair and unreasonable" (without the words "of themselves") the defender's comments might have been well founded. It was submitted that what the Sheriff was in fact saying was that the terms of the Minute of Agreement were not in themselves unfair and unreasonable. However the Sheriff them went on to explain the other circumstances and the conclusions that lead her to the overall finding that, in the whole circumstances, the Minute of Agreement was not fair and reasonable.

51.        As far as the comparison of this case with the case of Her Majesty's Advocate v Bennett at para 39 Lord Clarke stated:

"There is no averment in this case that in doing so the individuals were acting in mala fides."

That issue was the crucial distinction when comparing the current case. In Bennett, Development Officers were spelling out to the defender the consequences of non-payment. It was clear that they were not spelling out the consequences very nicely and they might be said to have set out the consequences at their highest. However that required to be compared to what the defender was held to have done in this case. I was referred to the findings in fact set out at para 9 hereof. In addition the Sheriff stated at para 8 of her judgment:

"The history of the relationship between the defender and the pursuer, on the defender's own evidence involved him shouting and swearing at the pursuer. He accepted that following the separation he purposely contacted her with the purpose of securing her agreement to transfer the matrimonial property and that during February 2005 he phoned her daily but not more than three times a day, for this purpose. I found the pursuer, Miss Kane and Miss Noland credible and reliable witnesses as to the defender's abusive conduct at the pursuer's home during the week before and the day before she signed the Minute of Agreement. I accepted their evidence that the pursuer was frightened of the defender on these occasions and Mrs George's view that her client was frightened, apprehensive and anxious at the time she instructed her with regard to the Agreement. I also took into account the pursuer's medical history and my conclusion was that this made her more vulnerable to harassment from the defender. The defender was convicted of a breach of the peace committed on 4 September 2005 by shouting and swearing at the pursuer; and he was subject to an interim interdict from 3 February 2004 prohibiting him from personally molesting the pursuer. The breach of the peace and the descriptions in evidence of his contact with the pursuer clearly represented breaches of that interim interdict. I was satisfied on the balance of probabilities that the defender deliberating set out to and did coerce the pursuer into entering the Minute of Agreement."

It was submitted that that was an entirely difference situation from that which existed in Bennett.

52.        The Sheriff was entitled on the evidence led before her to make the findings which she did.

Decision on fourth ground of appeal

53.        I am satisfied that the Sheriff was entitled to hold that there had been coercion on the part of the defender. The findings in fact of her note on this subject, which I have set out in para 9 hereof make it clear that the defender's conduct towards the pursuer was such that she was frightened of him. I think this case can be distinguished from the decision of the Advocate General for Scotland v Bennett supra to which I was referred. That case involved an employee of the HM Customs & Excise spelling out in not very pleasant language to a person the consequences of failure to pay VAT. This case provides a clear example of domestic abuse. In my opinion the findings of the Sheriff indicate that the pursuer was abused in a material way by the defender. It affected her health. She was frightened of him. There is no suggestion that any physical violence was involved, but the defender's constant telephoning of the pursuer, which initially caused her to seek interim interdict in the first place was of an abusive nature. The Sheriff records that at times the defender would telephone the pursuer three times a day badgering her to sign the Agreement. There were face to face confrontations and personal abuse that frightened the pursuer. I have no hesitation in reaching the conclusion that the Sheriff was entitled to hold that there was coercion at the time the pursuer signed the Minute of Agreement.

54.        I have no issue with the Sheriff's use of the words "the terms of the Minute of Agreement are not of themselves necessarily unfair and unreasonable". The terms of the Minute of Agreement were not the only matter the Sheriff was entitled to take into account in deciding whether the terms of the Minute of Agreement in fact were unfair and unreasonable at the time the Agreement was entered into. Such a decision involves a consideration of all the circumstances, including (i) coercion at the instance of the defender, (ii) the failure of the defender at that time to make appropriate disclosure of the financial position to allow an objective decision to be made as to what was in the circumstances fair and reasonable, and (iii) the advice tendered to the pursuer by her solicitor at the time not to sign the Minute of Agreement. I reject the submission that the use of these words by the Sheriff in para 9.2 of her note was fatal to the pursuer's case.

Fifth ground of appeal - already dealt with in paras 6 and 7 hereof.

Sixth ground of appeal six - already dealt with in section of this note in first and second grounds of appeal.

Seventh ground of appeal

The Sheriff heard evidence from the defender and his witnesses pertaining to a payment made by the defender to the pursuer of £15,000 cash. The Sheriff omitted to make any finding in relation to this evidence. It is submitted that this is indeed a relevant consideration and a material fact which the Sheriff simply failed to address in her judgment. She neither accepts nor rejects the evidence of the defender and his witnesses and has misunderstood the importance of same.

Submissions for the defender and appellant

55.        This allegation was put to the pursuer. The pursuer denied that this had taken place. Linda George, the pursuer's solicitor, said she was not privy to any such arrangement. It was spoken to by the defender at various parts of his evidence and spoken to by Mr Bell. It would appear from a perusal of Mr Bell's evidence that he was not confirming that such a payment was in fact made. He refers to an agreement between the parties but states that neither he nor Mrs George became involved.

56.        The Sheriff's only comment on this matter was at para 9.1 where she states:

"I found Mr Bell's advice to his client as recorded in his file note no 6/3/2 of process regarding the defender's proposed £15,000 "under the table" payment to the pursuer somewhat unusual."

57.        It was pointed out that the pursuer had made no finding in fact either way. She neither accepted nor rejected the pursuer's or defender's evidence on this point. She appeared to have ignored that body of evidence. It was submitted this was a material fact and a relevant consideration with the Sheriff ought to have had regard. It is clear from the absence of comment that she did not consider this issue. It was submitted she had misunderstood the importance and relevance of this action when considering whether the Agreement entered into was not fair and reasonable.

Submissions for pursuer and respondent

58.        It was certainly open to the Sheriff, if she thought fit, to make a finding on this matter. However it was suggested that the issue had no bearing on her overall decision. The Sheriff's position was that there was no full disclosure by the defender para 9.2:

"I am also satisfied that at the time the Minute of Agreement was entered into there was insufficient disclosure by the defender to the pursuer's solicitor in relation to these matters to found an Agreement equitably dividing the matrimonial property."

Whether the Sheriff was satisfied that £15,000 had been paid to the pursuer by the defender or not would not, in the circumstances which existed at the time, have enabled the pursuer to come to the view that the terms of the Minute of Agreement were fair and reasonable.

Decision of seventh ground of appeal

59.        In light of the decision by the Sheriff regarding coercion, failure to disclose on the part of the defender in the circumstances that existed at the time, and the advice not to sign the Agreement given to the pursuer by her solicitor, I take the view that whether or not £15,000 had been paid to the pursuer by the defender is at this stage irrelevant. At any proof following hereon, a finding will no doubt require to be made on the basis of the evidence led at the proof.

Conclusion

60.        The appeal was directed against the Sheriff's finding in fact and law 1 to the effect that the terms of the Minute of Agreement signed by the pursuer on 25 February 2005 and the defender on 1 March 2005, and registered in the Books of Council and Session on 14 March 2005 as to financial provisions were not fair and reasonable at the time it was entered into. The Sheriff concluded that this was the case by reason of the defender coercing the pursuer into signing the Minute of Agreement and by his failure to disclose the assets, liabilities and accounts for Billy's Taxis Lesmahagow Ltd and the mortgage loan and outstanding debts in relation to the matrimonial home.

61.        I have set out in detail the submissions which were made to me by parties. It is my opinion that the Sheriff, on the basis of her findings, and for the reasons set out in her note, was entitled to conclude the terms of the Minute of Agreement between the parties as to financial provision were not fair and reasonable at the time it was entered into.

62.        The case of Gillon v Gillon (No 3) supra set out five principles (recorded in para 25 hereof) which should be applied in deciding whether or not the terms of a minute of agreement relating to financial provision on divorce were fair and reasonable at the time it was entered into. Of particular relevance are (b) and (c) which are in the following terms:

"(b) The examination had to relate to all the relevant circumstances leading up to and prevailing at the time of the execution of the agreement including among other things the nature and quality of the legal advice given to either party

(c) evidence that some advantage had been taken by one party to the other by reason of the circumstances prevailing at the time of negotiations might have a cogent bearing on the determination of the issue."

63.        The Sheriff has made a finding that the defender coerced the pursuer into signing the Minute of Agreement as evidenced by his conduct set out in detail in her interlocutor and note. I refer to para 9 hereof. The defender was convicted on 4 September 2004 in Hamilton Sheriff Court after trial of a breach of the peace by shouting and swearing and uttering threats of violence to the pursuer on the telephone. The Sheriff's findings make it clear that this type of conduct continued until the Minute of Agreement was signed. The Sheriff notes that in January and February 2005 the defender repeatedly telephoned and visited the pursuer, shouted and swore at her, and subjected her to verbal abuse in order to coerce her into signing the Minute of Agreement. Her findings in fact 19 and 20 record:

"19. During the week prior to 25 February 2005 the defender visited the pursuer's home uninvited and in the presence of the pursuer's sister, Miss Kerry Nolan, and the parties' children, shouted and swore at the pursuer, demanding that she sign the Minute of Agreement.

20. On 24 February 2005 the defender visited the pursuer's home uninvited and in the presence of the pursuer's friend Miss Lisa Kane, shouted at the pursuer to sign the Minute of Agreement. The pursuer was frightened of the defender. The same day she telephoned her solicitor and made arrangements to sign the Minute of Agreement at her solicitor's office the following day."

It is further of significance that on 23 February 2004, in the present action, interim interdict was granted against the defender ad interim prohibiting him from personally molesting the pursuer. The defender was clearly in breach of that interdict on the various occasions mentioned by the Sheriff. It is apparent to me, from reading the Sheriff's interlocutor and note, that the pursuer has been subjected to systematic domestic abuse at the instance of the defender over a substantial period prior to the signing of the Minute of Agreement. The defender's proven conduct to the pursuer was wholly unacceptable.

64.        This course of conduct prior to the Minute of Agreement being signed in my opinion well entitled the Sheriff to conclude that the pursuer had been coerced into signing the Minute of Agreement. This was a relevant circumstance (principle (b) of Gillon). It was also evidence that some advantage had been taken by the defender of the pursuer (principle (c) of Gillon).

65.        It is also a relevant circumstance that the pursuer signed the Agreement despite advice to the contrary from her solicitor. In particular I refer to para 4.2 of the Sheriff's Note:

"Mrs George felt that she did not have the full picture regarding the matrimonial property and debts and was quite sure her client did not understand what was happening either ...

No 6/5/2 of process is a letter to Mrs George from Mr Bell dated 5 January 2005. This made further assertions regarding the parties' indebtedness. Mrs George recollection was that there was still insufficient vouching for this and she wished to see the taxi business accounts for three years prior to separation."

And 9.1:

"I found Mrs George a considered and reliable witness as to her advice and the events which preceded the conclusion of the Minute of Agreement. I concluded she had given the pursuer sound advice not to sign the Minute of Agreement as not enough information was available to found an agreement in January 2005."

The Sheriff accepted Mr George's view that her client was frightened, apprehensive and anxious at the time she instructed her with regard to the Agreement. The advice tendered by Mrs George can be readily further understood when one has regard to the Sheriff's findings that prior to entering the Minute of Agreement, the defender did not make full disclosure to the pursuer's solicitors to assets, liabilities and accounts for Billy's Taxis Services Lesmahagow Ltd, the mortgage debt on the matrimonial property and expenditure on completion of the matrimonial home. While it was argued on behalf of the defender that the pursuer or her agent could have obtained this information, the fact of the matter is that, on the basis of such information as was available to her at the time, the pursuer was properly advised by her solicitor not to sign the Minute of Agreement. If the defender's position was that he considered the terms of the Agreement which he was proposing to be fair and reasonable and he wished the pursuer to sign the agreement immediately, it was for him to produce evidence at that time which could demonstrate to the pursuer and her advisers that the proposed Agreement was indeed fair and reasonable. This he did not do. Additionally, it was open to the defender to demonstrate that this was the case at the preliminary proof before the Sheriff. However, the Sheriff, on the basis of such evidence as was led before her, was unable to reach the conclusion that the terms of the Minute of Agreement were in fact fair and reasonable. She thus properly repelled the defender's plea in law 10.

66.        In the whole circumstances I take the view that this appeal fails. I sustain the Sheriff's judgment, subject to deleting her repelling the pursuer's plea in law 7 and the words "orders that all terms of the Minute of Agreement between the pursuer and defender relating to provision are set aside". I insert in her interlocutor, on the basis of her findings the words "finds the terms of the Minute of Agreement between the pursuer and defender relating to financial provision were not fair and reasonable at the time it was entered into". There was no dispute that the Sheriff was not entitled to set aside the terms of the Minute of Agreement at this stage as divorce had not been granted. The contested appeal was directed to the Sheriff's decision on whether or not the Agreement was fair and reasonable at the time it was entered into. In these circumstances expenses should follow success. I have accordingly awarded the expenses of the preliminary proof and the appeal to the pursuer.