Scottish Sheriff Court Decisions

SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT DINGWALL

Note

by

Sheriff Philip Mann

Following upon

Hearing on Interim Orders

1 Background

1.1 This case called before me on 17 June 2010 as a hearing on interim orders sought by the Pursuer in terms of section 3(4) of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 ("The Act"). The Pursuer was represented by Mrs Vanderboon and the Defender was represented by Mrs Forbes. I refused to grant the interim orders sought by the Pursuer and pronounced an interlocutor to that effect. I briefly indicated my reasons for that but also indicated that I would be willing to write a note setting out my reasoning in full. This note is prepared in response to a request by the Pursuer to do just that.

1.2 The Pursuer's craves, in so far as relevant to the hearing before me, were as follows:

1. To enforce the Pursuer's right to occupy the matrimonial home at ........ by ordaining the Defender to allow the Pursuer to enter either (sic) into and occupy the said dwellinghouse in terms of section 3(1)(b) of the Matrimonial Homes (Family Protection) (Scotland) Act 1981; and to grant such Order ad interim in terms of Section 3(4)(a) of the said Act.

2. To protect the Pursuer's right to occupy the matrimonial home at ........ by interdicting the Defender from preventing the Pursuer from exercising his right to enter into and occupy the said matrimonial home by inter alia ejecting him from the said dwellinghouse or by preventing him from gaining access thereto by locking him out, changing the locks or by carrying out any other act expressly designed to prevent the Pursuer from exercising his right to enter into and occupy the said matrimonial home in terms of Section 3(1)(e) of the Matrimonial Homes (Family Protection) (Scotland) Act 1981; and to grant such Order ad interim in terms of Section 3(4)(a) of the said Act.

1.3 Section 3 of the Act, in so far as relevant to the hearing before me, is in the following terms:

3. (1) Subject to section 1(7) of this Act, where there is an entitled and a non-entitled spouse, or where both spouses are entitled, or permitted by a third party, to occupy a matrimonial home, either spouse may apply to the court for an order-

(a) declaring the occupancy rights of the applicant spouse;

(b) enforcing the occupancy rights of the applicant spouse;

(c) restricting the occupancy rights of the non-applicant spouse;

(d) regulating the exercise by either spouse of his or her occupancy rights;

(e) protecting the occupancy rights of the applicant spouse in relation to the other spouse.

(2) ..............

(3) The court shall grant an application under subsection (1)(a) above if it appears to the court that the application relates to a matrimonial home; and, on an application under any of paragraphs (b) to (e) of subsection (1) or under subsection (2) above, the court may make such order relating to the application as appears to it to be just and reasonable having regard to all the circumstances of the case including-

(a) the conduct of the spouses in relation to each other and otherwise;

(b) the respective needs and financial resources of the spouses;

(c) the needs of any child of the family;

(d) the extent (if any) to which-

(i) the matrimonial home; and

(ii) in relation only to an order under subsection (2) above, any item of furniture and plenishings referred to in that subsection,

is used in connection with a trade, business or profession of either spouse; and

(e) whether the entitled spouse offers or has offered to make available to the non-entitled spouse any suitable alternative accommodation.

(4) Pending the making of an order under subsection (3) above, the court, on the application of either spouse, may make such interim order as it may consider necessary or expedient in relation to-

(a) the residence of either spouse in the home to which the application relates;

(b) the personal effects of either spouse or of any child of the family; or

(c) the furniture and plenishings:

Provided that an interim order may be made only if the non-applicant spouse has been afforded an opportunity of being heard by or represented before the court.

(5) The court shall not make an order under subsection (3) or (4) above if it appears that the effect of the order would be to exclude the non-applicant spouse from the matrimonial home.

1.4 No defences had been lodged but both parties had lodged extensive affidavits granted by themselves and by supporting witnesses. Both had lodged letters from their respective doctors. The affidavits gave completely conflicting versions of the history of the parties' conduct towards each other but I was able to discern the following common ground. There had been a history of disharmony between the parties culminating in their separation a few weeks before the raising of this action. The Pursuer suffered from bipolar disorder and the separation had come about when he had had to go into hospital for treatment. The Defender had visited him in hospital and had advised him that he was no longer welcome in the matrimonial home. The Defender had changed the locks of the home. The parties' 16 year old son continued to live with the Defender within the matrimonial home of which the Defender was the sole tenant. The Pursuer was the non entitled spouse and the Defender was the entitled spouse in relation to the matrimonial home.

1.5 Beyond the common ground identified in paragraph 3 hereof it was impossible for me to form a view as to which version of events was to be preferred. I could only do that after a proof. On the view that I took of matters it was not necessary for me to prefer either version of events.

2 Submissions

2.1 Mrs Vanderboon referred to the affidavit evidence produced on behalf of the Pursuer. She referred me to the case of Berry v Berry (No1) 1988 SLT 650 as authority for the proposition that section 3(3)(a) of the Act requires an examination of the conduct of the parties in relation to the occupancy of the matrimonial home. She urged me to accept the Pursuer's version of events as to the conduct of the Parties towards one another. She pointed out that the Pursuer was supported by an affidavit from the Parties' son who had deponed that the Pursuer had never been violent. The Pursuer denied the Defender's assertion that he had been violent towards the parties' son. Mrs Vanderboon submitted that the Pursuer was entitled to occupy the matrimonial home. She said that the Pursuer acknowledged that his bipolar disorder made him difficult to live with but at the same time the Defender had undertaken to be his carer. The Defender had never sought an order excluding the Pursuer from the matrimonial home which she could, and should, have done if she were frightened of him. Mrs Vanderboon sought an interim order enforcing the Pursuer's occupancy rights, in terms of crave 1, by way of ordaining that the Pursuer be entitled to reside there, coupled with an interim interdict in terms of crave 2. Mrs Vanderboon indicated that the Pursuer was currently living with his parents in Dundee. She maintained that the Pursuer currently had to do a lot of travelling between Dundee and the area where the matrimonial home was situated in order to receive treatment for his bipolar disorder and to maintain contact with his son. This was detrimental to his health. She maintained that if the Pursuer had to rely on the Local Authority for alternative accommodation in the area of the matrimonial home at this stage this would almost certainly require him to live in a hostel. This, again, would be detrimental to his health. Mrs Vanderboon suggested that there was nothing to stop the Defender moving out of the matrimonial home to live with relatives in the area. This would enable the Pursuer to live in the matrimonial home with the parties' son who was said to be comfortable with such an arrangement. When I pointed out to her the terms of section 3(5) of the Act, Mrs Vanderboon was careful to stress that she was not seeking an order requiring the Defender to remove from the matrimonial home. If the Defender was unable to live with the Pursuer there it would be her choice to move out. Mrs Vanderboon suggested that as a "half way house" I could make an interim order whose effect would be that the Pursuer could live in the matrimonial home for a period of, say, four months. At the end of such a period the Pursuer would have a better chance of obtaining the tenancy of a Local Authority house in the area of the matrimonial home that would not involve him living in a hostel.

2.2 Mrs Forbes for the Defender accepted that the Defender had been the Pursuer's carer and acknowledged that there had been difficult periods in the relationship between the parties over the years. She said that the last straw for the Defender had been when she had seen the Pursuer wrestling with the parties' son. The Defender had shielded her son from the relationship between the parties and it was not surprising, therefore, that her son could say that he had never seen the Pursuer being violent. Mrs Forbes maintained that the Defender was frightened of the Pursuer. The Defender had discussed with her doctor the possibility of applying to the court for an exclusion order against the Pursuer but the doctor had advised her that this might push the Pursuer over the edge. The Pursuer had recently threatened to execute the Defender. The Defender took this threat seriously, as did the police domestic violence liaison officer and the womens aid organisation to whom she had turned for help. Mrs Forbes said that the Defender would feel compelled to leave the matrimonial home if the Pursuer were allowed to return there. She referred to a doctor's letter which had been lodged and which indicated that it would be injurious to the health of the Defender were the Pursuer to be allowed to return to live in the matrimonial home.

3 Discussion

3.1 The first thing to notice about section 3(4) of the Act is that it involves an exercise of discretion. The second thing to notice is that it does not direct that the exercise of that discretion is to be based on a consideration of the matters set out in paragraphs (a) to (e) of section 3(3). The test set out in section 3(4) is whether the interim order sought is necessary or expedient pending the making of an order under section 3(3). What is necessary or expedient on an interim basis is not necessarily the same as what is necessary having regard to the respective needs of the parties under section 3(3)(b). An interim order under section 3(4) is not an interim version of an order under section 3(3). In this respect it differs significantly from an interim exclusion order under section 4(6), which is an interim version of, and has exactly the same effect as, an exclusion order described in section 4(1). It also differs significantly from an exclusion order and, indeed, from section 19 of the Act relating to an action of division and sale, which was the matter exercising the Court in the case of Berry v Berry, in another respect. In the case of an exclusion order, whether interim or final, and in the case of section 19 the Court is directed specifically to have regard to the matters set out in paragraphs (a) to (e) of section 3(3) which, as I have said, is not so in the case of section 3(4). The third thing to notice about section 3(4) is that, by section 3(5), no order can be made if it appears that the effect of it would be to exclude the non-applicant spouse from the matrimonial home.

3.2 For the reasons set out in paragraph 3.1 hereof the case of Berry v Berry is not relevant to the issue that had to be determined by me in this case. Parties were unable to cite any other case, and I have been unable to find any case, concerning an interim order under section 3(4) of the Act.

3.3 Having regard to my comments thus far, it could be said that the Pursuer was misconceived in seeking an interim order simply by tacking this on at the end of crave 1. In my view there ought to have been a distinct crave seeking a specific interim order "or such other order as the Court shall deem necessary or expedient" in terms of section 3(4) of the Act. However, I did not refuse the interim order sought by the Pursuer on that technical ground. I preferred to examine the circumstances in so far as these could be determined with a reasonable degree of certainty at this stage, to see if the test which I have identified in paragraph 3.1 hereof had been met.

4 My Decision

4.1 I was conscious of the terms of section 3(5) of the Act. I took Mrs Vanderboon's point that an order providing that the Pursuer should be entitled to reside in the matrimonial home in the interim would not, in terms, exclude the Defender from the matrimonial home but I was concerned that it was more or less implicit from the submissions on behalf of both parties that they both could not live in the same house at the same time. In that situation it seemed to me that it was rather too simple to say that the departure of the Defender from the matrimonial home would be an exercise of her free choice. However, whilst I could say that it appeared that the effect of the order sought by the Pursuer might well be to exclude the Defender from the matrimonial home I did not feel that I could go so far as to say that it appeared that it would have that effect and so the test in section 3(5) was not met.

4.2 So, was the section 3(4) test met? It was significant that the Pursuer had not averred any need for him to reside in the matrimonial home except by inference from his averment in article 2 of condescendence that it would be detrimental to his health to live in hostel accommodation. He had certainly averred a wish to live in the matrimonial home but that did not meet the test. There was no averment and there was no submission to the effect that, for example, the matrimonial home had been adapted to the needs of the Pursuer. There was no averment and there was no submission that the Pursuer had a need to live in this particular house, which happened to be the matrimonial home, as opposed to any other house. There was no averment and there was no submission that it would be possible for the parties to live separately within the matrimonial home. There were certainly submissions to the effect that having to travel between Dundee and the area of the matrimonial home and, supported by a doctor's letter, that living in a hostel would be detrimental to the Pursuer's health. On the other hand, no reason was advanced as to why the Pursuer could not continue to live with his parents in the interim. Likewise, no reason was advanced as to why the Pursuer could not obtain satisfactory treatment for his bipolar disorder in the Dundee area, although I could accept that it would be preferable for treatment to be given by those whom the Pursuer had come to know and trust. Whilst I could see that having to travel to get treatment and to see his son represented an inconvenience, perhaps even a significant inconvenience, to the Pursuer I was not persuaded that that translated into its being necessary or expedient for the Pursuer to live in the matrimonial home in the interim. I was not attracted to Mrs Vanderboon's suggestion of a "half way house" order providing for the Pursuer to be entitled to live in the matrimonial home for a set period. This was said to have the advantage that it would enhance the Pursuer's prospects of securing a suitable tenancy from the local authority. However, I was unable to see why that should be. The Pursuer would not be any less homeless after the set period than he was at the time of submissions and I could not see why the local authority would necessarily view matters differently at that later time than they did as at the time of submissions. It may be the case, of course, that a period of months might have enabled the Pursuer to secure a suitable tenancy through the normal channels rather than through the homelessness legislation but on the basis of the submissions made to me that would have been pure speculation.

4.3 Whilst I could see that it would be convenient for the Pursuer were he to be able to reside in the matrimonial home in the interim I was not engaged in an exercise the object of which was to determine the balance of convenience between the parties. I have set out what I consider to be the correct test to apply in this case in paragraph 3.1 hereof. The word "necessary" requires no explanation but for something to be "expedient" it has to be more than merely convenient. It has to be fit and proper as a means of achieving an end in particular circumstances. I was not persuaded that the Pursuer's wish to live in the matrimonial home arose out of either necessity or expediency. Accordingly, I declined to make the interim orders sought by the Pursuer.

Sheriff Philip Mann

22 June 2010