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Scottish Sheriff Court Decisions |
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You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> D.C. v. R.C. [2013] ScotSC 39 (23 May 2013) URL: http://www.bailii.org/scot/cases/ScotSC/2013/39.html Cite as: [2013] ScotSC 39 |
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SHERIFFDOM OF TAYSIDE, CENTRAL AND FIFE AT ALLOA
Judgement
by
Sheriff Derek O'Carroll,
Advocate
in causa
DGR
PURSUER
against
RIC
DEFENDER
Act: Savage, solicitor
Alt: McIntyre, solicitor
ALLOA, 2 May 2013
The Sheriff, having resumed consideration of the cause:
Finds the following facts admitted or proved:
(a) SERPS pension valued at £5,684.73
(b) Interest in private pension scheme valued at £27,261.70
(c) Sum at credit of Lloyds TSB account a/c [number redacted]: £72.46
(d) Sum at credit of Lloyds TSB account a/c [number redacted]: £504.70
(a) SERPS pension valued at £4,302.58
(b) Interest in private pension scheme valued at £113,377.00
(a) The matrimonial home at [address redacted] having an agreed market value as at 15 February 2013 of £120,000, subject to a standard security in favour of the Yorkshire Building Society as of March 2013 of £180 making the net value of the matrimonial home being £199,820.
(b) Sums at credit of three joint accounts numbered [redacted] with the Yorkshire Building Society as follows: (£1.44); (£4,916.16);(£7,187.65).
(c) Sum at credit of Lloyds TSB a/c [redacted] (£70.66)
(a) £3,495.16 from Yorkshire Building society a/c [redacted],
(b) £3,593.82 from Yorkshire Building society a/c [redacted]
FINDS IN FACT AND IN LAW
THEREFORE
Sustains the pursuer's 1st first plea-in-law, Sustains the Pursuer's 2nd and 4th pleas-in-law to the extent specified herein; Repels the pursuer's 3rd plea-in-law as not insisted on; Repels the defender's pleas-in-law; Divorces the defender from the pursuer; Orders that the sums at credit at the parties' joint accounts as at the date of proof be divided equally between the parties forthwith those accounts being: accounts with Yorkshire Building Society [account numbers redacted] and Lloyds TSB [account number redacted]; Orders that the parties' heritable property at XXXX be marketed and sold by the parties and ordains the pursuer and defender to execute and deliver to the purchaser of the subjects such disposition and other deeds as shall be necessary for constituting the whole right thereto to the purchaser, failing which the Sheriff Clerk is directed to execute such disposition and other deeds all as adjusted at his sight as shall be necessary, the expenses of which to be borne equally by the parties; Makes an incidental order under section 8(2) and section 14(2)(c) of the 1985 Act determining the parties' respective rights in the net free proceeds of the sale of the matrimonial home by ordering that the net free proceeds of sale be divided equally between the parties but subject to an ancillary order under section 14(2)(k) of the 1985 Act ordering that the defender pay to the pursuer £38,833.50 from his share as a counterbalancing payment and that within 7 days of disbursement of the proceeds of sale to the parties; Reserves meantime all questions of expenses and appoints the parties to be heard thereon at a date and time to be fixed hereafter.
NOTE:
[1] This divorce action proceeded to proof before me at Alloa Sheriff Court over a period of 2 days on 14 and 21 March 2013. The action had had a lengthy history which is not necessary to go into here. It suffices to say for present purposes that by the date of the proof, the state of the pleadings as adjusted and amended was as follows. The pursuer sought decree of divorce, decree for payment of a capital sum and an order for sale of the matrimonial home. There were pleas-in-law supporting these craves. However, by the date of proof, the matrimonial home was on the market so the parties agreed that an order for sale was now unnecessary. By contrast, the defender had no craves at all. The defender's pleas-in-law were restricted to a plea that an order for payment of a capital sum was unreasonable having regard to the parties resources and a plea that an order for sale was unnecessary. There were no craves or pleas-in-law as regards treatment of the parties' pension entitlements and in particular, no crave or plea-in-law as regards a pension sharing order.
[2] I was advised at the commencement of the proof that much had been agreed between the parties. A joint minute was lodged in which the extent and value of the matrimonial property was set out. The contents of the joint minute are found in the findings of fact above. The divorce was to be undefended and the appropriate affidavits were lodged together with the marriage certificate. I was told that there would need to be a limited amount of evidence heard following which submissions would be made.
The evidence
[3] The Pursuer gave evidence. Her net salary was about £1,300 per month at present. Changes in her employer's arrangements meant that either her hours or hourly rate might decrease a little in the near future unless she was to accept a move to a different working place, which she was reluctant to do since she enjoyed working where she was. If she stayed where she was, her monthly net wage would be likely to decrease a little.
[4] The Defender gave evidence. He is a [redacted]. He is in a pension scheme with a normal retirement age of 65. He is aged X at present. He presently lives in the matrimonial home which is up for sale. If the house was sold, he would need his share of the proceeds to buy another house in which he would live together with his son aged X who worked as a[redacted]. He accepted that his pension fund was higher than that of his wife's. He would agree to a pension sharing order from his pension to equalise their respective pension positions in return for equal sharing of the proceeds of the sale of the house and other matrimonial assets.
[5] The outstanding mortgage was just £180. He paid £22.50 per month to the mortgage. He was not saving. All his income was spent as he received it since he was repaying a loan to his father. He agreed that he would struggle to pay a mortgage of a larger amount.
Submissions
[6] The parties then made their submissions. The Pursuer submitted as follows. The figures in the joint minute show that the total matrimonial property in the hands of the Pursuer is £33,523.59, that in the hands of the Defender is £117,679.58 (mostly his pension) and joint matrimonial property is £131,995.91 (mostly the value of the matrimonial home). The total matrimonial property is therefore £283,100.08. Following the relevant date, the Pursuer withdrew a total of £7,088.98 from the joint bank accounts for her own benefit for which allowance needs to be made in dividing up the matrimonial assets.
[7] The parties were agreed that a fair sharing of the matrimonial property is equal sharing: no reason in terms of the Act exists for unequal sharing. An equal share for each is £141,550.04[1]. The appropriate way forward was that the parties would keep their pension entitlements with the remainder of the matrimonial assets then being allocated between the parties to achieve equality. The greater part of the matrimonial assets was locked into the matrimonial home. Once that was sold, the net proceeds should be divided between the parties to achieve equality. I was told that the parties had agreed between themselves that they would each equally meet the costs of sale once sold so the full agreed market value of the matrimonial home could be safely used for the purposes of calculation.
[8] The Defender's agent took a different approach entirely. In his view, the better and fairer approach was to divide the assets into three different classes: pension entitlements, liquid assets and the matrimonial home. Within each class, the Court should then divide the assets equally. The result of this is that that there would need to be a pension sharing order made so as to transfer from the defender to the pursuer an amount necessary to achieve equality of pension entitlement. Similarly, the liquid assets would be divided between the parties. Finally, once the house was sold, the net proceeds should be divided equally between the parties. This would be the best result since it would enable both parties to have equal provision for retirement and equal free capital in the near future so as to enable each to put down a deposit to a house and set up a new life separately. It was submitted that if I were to adopt the Pursuer's proposed methodology, the Defender would be left with insufficient resources to buy a new house once the matrimonial home was sold. In effect, the preservation of his existing pension entitlements would come at the cost of his not being able to purchase a new house which he would need once the existing house was sold.
[9] The difficulty with this approach, as the agent candidly admitted in response to questions from the bench, was that there was no crave for a pension sharing order. Some thought had been put to the possibility of such an order being sought. However, on the strength of an opinion obtained from counsel some time ago in relation to another case, agents had refrained from craving a pension sharing order. The opinion was to the effect that the defender was unable to crave such an order because the effect would be that he would be seeking a crave against himself: a crave ordering him to enter into a pension sharing arrangement. That was incompetent, so the agent believed. I was referred to T v T 1987 SLT (Sh Ct) 74 and Young v Young 1991 SLT 853 in support of that proposition. Instead, the Defender had averred at article 4 of condescendence that the defender was prepared to agree a pension sharing order so as to achieve equality of pension assets. That was as far as the Defender could go. The Pursuer was not agreeable to sharing of the pension assets of the parties and had refused to insert a crave to that effect therefore.
[10] The agent also candidly submitted that as a result of the state of the pleadings, the Defender was not seeking a pension sharing order. However, it was submitted that such an order would be the fairest way of dividing the matrimonial pension assets. The Defender's agent also candidly admitted that absent a crave for a pension sharing order, the Court had no power to grant one: OCR 33(34). Neither therefore had the necessary ancillary steps been taken in order to prepare the way for the court to make such an order.
[11] I was further asked not to grant the order sought by the Pursuer as regards making an order for the division of the matrimonial property based on the current market value of the house. That was dangerous since in the current market the house, though valued at £120,000 by responsible valuers, and though on sale for that price, might not achieve that price. I was asked therefore to treat the house separately from the other matrimonial property and order simply that when sold the net proceeds be divided equally.
[12] In response, agents for the Pursuer submitted that pension sharing orders were not for the benefit of either party, they are a means of facilitating fair sharing. However, the Pursuer did not consent to a pension sharing order and did not want one. He agreed that without a crave for such an order, the court was not entitled to grant such an order. As regards the treatment of the house, he submitted forcefully that the parties had agreed in the joint minute the value of the house and that it was not possible now for the Defender to attempt to persuade the house to go behind that valuation. That concluded submissions.
[13] In response to these submissions, I advised the parties that I was not content at that point to make avizandum and continued the proof for further submissions in relation to the competency of the Defender seeking a pension sharing order. I was not sure that the case law referred to by the Defender's agent represented the current legal position. I continued the proof one week. During that period, I caused a message to be sent to the agents referring them to the case of Murdoch v Murdoch [2012] CSIH 002.
[14] On 21 March 2013, the proof resumed. The Defender had further submissions. Under reference to Murdoch, he submitted that he now accepted that it was competent for the Defender to crave a pension order. He then lodged at the Bar a minute of amendment and sought leave to amend the Record by adding a crave for a pension sharing order, a crave granting warrant for intimation to the Defender's pension trustees, a short amendment to article 4 of condescendence and an additional plea-in-law, referring to section 9(1)(a) of the Family Law (Scotland) Act 1985 to tie in with the new craves. He moved the court to allow that minute to be received and for the record to be opened up, amended in terms thereof and closed anew. He submitted that the Court would now be in a position to decide the matter between the parties without further ado. In particular, it was submitted that the pursuer would not need to answer the minute and that no further proof would be required. The effect of the minute was simply to "get round the artificial barrier erected by Muir v Muir" and it did not introduce new matters not already known to the Pursuer. It was however conceded that if the Court refused the motion to amend, the only alternative method of sharing the matrimonial property would be to adopt the method proposed by the Pursuer.
[15] Submitting on the evidence, agents for the defender agreed that neither party had any significant assets apart from the matrimonial property. It was agreed that the Defender's income from employment might decrease to some extent in the future. The Pursuer would need somewhere to live once the house was sold so he would need his share of the proceeds of the sale of the house to enable him to buy a house. There was no evidence as to why the Defender would need most of the capital from the sale of the house. There was no evidence from her as regards her accommodation needs. The Defender did not oppose crave 3 for the sale of the house. It was agreed that the marketing and conveyancing of the house would be done by his firm and that the costs of the transaction would be shared equally between the parties. Finally, he said that while there was at present no formal documentary evidence from the pension fund with regard to costs and the feasibility of a pension sharing order, he had been recently advised by an employee of the fund that the costs of the pension share would be between £1,350 and £3,000 depending on the means adopted.
[16] In reply, agent for the Defender opposed the motion to amend for the following reasons. Firstly, it was very late. It came following the conclusion of the evidence, on the second day of submissions. Second, if the minute of amendment were to be allowed, he would require to answer. Furthermore, there would require to be further proof. The evidence heard so far was on the basis of the very limited craves of the parties and the joint minute. If the craves were to change, that would almost certainly require fresh evidence on the parties' circumstances. In addition, there would need to be further evidence as to the terms of the pension schemes, whether the trustees of the pension scheme would be able and willing to pension share, and evidence about the cost of doing so. Such evidence had been unnecessary hitherto. In addition, the terms of the joint minute would require to be reconsidered and probably amended. Furthermore, until now, none of the proper procedure had been carried out as required by the Pension Sharing (Valuation) Regulations 2000 as regards intimation of the proposed pension sharing order on the trustees of the scheme and so on. The ordinary cause rules required formal intimation on the pension fund which had not yet been done.
[17] In short, allowing amendment at this stage would have the effect of opening up the proof again, the need for further procedure in connection with the pleadings and the pension fund with the inevitable consequence of further delay and expense. That was undesirable in itself, but it becomes even more so when one sees that the whole exercise would be quite unnecessary. That is because, in the circumstances of this case, unlike in Murdoch for example, no pension sharing order is necessary in order to achieve fair sharing of the matrimonial property between the parties on a 50/50 spilt. This was not a case where one party was to hold onto the matrimonial home requiring a pension sharing order to produce the means for a counterbalancing payment. In the circumstances of this case, fair sharing of the matrimonial property could be done along the lines proposed earlier. That would have the effect that the Pursuer would obtain the majority of the proceeds of the sale of the house while the Defender would retain the majority of the pension fund assets. That was fair sharing. There was no evidence that the defender needed a larger share of the proceeds of the sale of the house. There was no evidence from him about where he wanted to live after the house was sold or the cost of housing, either rented and bought. His evidence was that he would find it difficult to pay a mortgage of much more than the small amount he was currently paying. There was in short no reason advanced in evidence by the defender as to why the division of assets proposed by the Pursuer would not be fair.
[18] Following submissions, I made avizandum on all matters
Discussion.
[19] The first matter I require to decide is whether to allow the minute of amendment. In considering that, I remind myself that amendment is competent at any stage until decree. Further, whether to allow amendment is a matter for my discretion, to be exercised judicially taking account of all relevant matters. I consider that the following are the relevant matters.
[20] First, the timing of the motion to amend. The motion is very late, coming as it does after evidence and during submissions. It is opposed. That fact alone is not favourable to the Pursuer. Second, the reasons for the timing. The Pursuer had not previously sought a crave for a pension sharing order on the mistaken belief that that was incompetent. That belief was based on Counsel's opinion to that effect. However, that counsel's opinion predated the decision in Murdoch and was not an opinion obtained for the purposes of this case. It was nonetheless relied on. Moreover, Murdoch was decided a year before the proof. I am not satisfied therefore that there is good reason for the pleadings not having been put in the form now desired at a much earlier date. Thirdly, I consider the effect of a decision to allow amendment. In my view, if I were to allow amendment, the Pursuer would have to be given time to answer. The usual procedures required by the court rules and the pension sharing regulations would have to be carried out. That would all take time. A further consequence of allowing amendment would be the need for further proof. The Pursuer's present position and submissions have all been predicated on the state of the pleadings in which there had been no crave for any order by the Defender. It had been agreed between the parties that the court was unable to make an order for a pension share without a crave to that effect. Therefore, the Pursuer did not in evidence need to meet the Defender's submission that there should be a pension sharing order and equal sharing of the proceeds of sale of the house and did not do so. Without a pension sharing order, given the disparity in the respective sizes of the pension assets, the Pursuer's position was that it was inevitable that the Pursuer would end up with the majority of those proceeds in order to achieve equal sharing. If however amendment were permitted, the Pursuer could not rest on that position and would require to lead evidence to support her preferred position. Equally, the defender would require to lead evidence as to his accommodation requirements. In short, I accept that the effect of allowing amendment at this stage of proceedings would be to send the case back, not to the beginning, but at least a considerable way back with the concomitant delay and increased costs that would ensue. That factor again points away from allowance of the amendment. Finally, I consider whether such an amendment would be nonetheless necessary to do justice between the parties. In my view, it would not be necessary. In the absence of a pension sharing order, it is possible to simply and fairly divide the matrimonial property between the parties in my view. The nature of the assets and the parties' circumstances is such that a division on an equal basis can be achieved without a pension sharing order. There are no dependent children involved and the parties' matrimonial assets, with the exception of the pension funds are liquid or will shortly be made so. The matrimonial debts are negligible. A simple division between the parties of the matrimonial assets is possible in my view. Indeed, agents for the Defender accept that in the absence of a pension sharing order, the method proposed by the Pursuer is the right way forward.
[21] Accordingly, I refuse the minute of amendment for these reasons. The parties accept, and I agree, that therefore, this Court has no power to make a pension sharing order. The defender accepts that the consequence of my refusing the minute of amendment is that the Court must proceed to divide the matrimonial property along the lines proposed by the Pursuer.
Divorce
[22] First however, I deal with the crave for divorce. The uncontested evidence was that the parties married on [date redacted] and separated on 13 May 2010. They have not lived together since then, nor had marital relations. There is no prospect of reconciliation. The marriage has broken down irretrievably. There is an affidavit supporting that position lodged in process. There is a consent form in the process. On that evidence I am satisfied that the marriage has broken down irretrievably and that divorce ought to be granted on the basis of one year's non-cohabitation with the consent of the defender.
[23] There are no dependent children of the marriage. Therefore there are no decisions before the court concerning that matter.
Division of matrimonial property
[24] The law is found the Family Law (Scotland) Act 1985 and in particular sections 8 to 14 of the Act. It is unnecessary for present purposes to narrate the contents of those provisions. I was untroubled by any detailed submissions from the parties on the law as it applies generally. For present purposes, it suffices to record that the parties are agreed that fair sharing in the circumstances of this case is equal sharing. This, of course, follows on from the principles set out in section 9 and 10 of the Family Law (Scotland) Act 1985, where it is provided, first, that "the net value of the matrimonial property should be shared fairly between the parties to the marriage", and, secondly, that the property "shall be taken to be shared fairly between the persons when it is shared equally or in such other proportions as are justified by special circumstances". Neither party suggests that there are any special circumstances justifying unequal sharing, and, that being so, no more needs be said as to what represents a fair sharing of the matrimonial property. The orders which I pronounce proceed on the basis that there is to be a 50-50 split of the matrimonial assets taken as a whole.
[25] The joint minute agrees the identification and valuation of the whole of the matrimonial property at the relevant date. That is reflected in the findings in fact above. In terms of that agreement, the following is a summary of the position as at the relevant date. In the hands of the Defender was a total of £117,679.58 (being only pension entitlement), in the hands of the Pursuer, £33,523.59 (being both pension entitlements and a small amount of cash in two sole bank accounts). The value of matrimonial property held jointly is £131,995.91 (being £12,175.91 in five joint bank accounts and the value of the matrimonial home (after deduction of the £180 mortgage) which is £119,820). The total matrimonial property is thus £283,199.08. Sharing that equally between the parties entitles each to £141,599.54.
[26] The parties are agreed that in the absence of a pension sharing order being made, the proper means of division of the matrimonial property is for each party to retain their respective pension entitlements with the remainder of the matrimonial property then being divided between the parties taking account of the full value of those pension entitlements as at the relevant date.
[27] In the absence of a pension sharing order, it was agreed between the parties that each party will keep their current pension entitlements.
[28] So far as the rest of the matrimonial property is concerned, I consider that the following method provides the simplest and fairest way of dividing the property.
[29] As regards the joint bank accounts, the sum at credit as at the relevant date was as given above. Since that date, the Pursuer has drawn £7088.98 to the date of proof so that as at that date, the total value of sums at credit to those accounts was £5086.93. The simplest method to achieve fair sharing of the remaining sums in is to find that the parties are entitled to an equal share of that sum being £2543.46 each. The fact that the Pursuer has withdrawn for her own personal use some of the funds since the relevant date is taken account of in the way in which the incidental order is framed.
[30] So far as the matrimonial home is concerned, it is quite apparent that given the disparity in the pension funds of the parties, to achieve equal sharing, the Pursuer will be entitled to most of the proceeds of sale of the house.
[31] To achieve an equal share of the total matrimonial property, the defender is entitled to an additional payment from the proceeds of the sale of the house. Thus far, the defender is entitled to retain the matrimonial property in his hands (his pension entitlements) plus half of the remaining sums in the joint bank accounts. The difference between that sum and his entitlement to half of the matrimonial property, £141,599.54, is £21,376.50. The fairest way in which that additional sum may be made over to him in my view is as follows. I will make an order under section 8(2) and section 14(2)(c) of the 1985 Act determining the parties' respective rights in the net free proceeds of the sale of the matrimonial home by ordering that the net free proceeds be divided equally between the parties but subject to an ancillary order under section 14(2)(k) of the 1985 Act ordering that the defender pay to the pursuer £38,533.50 from his share as a counterbalancing payment (that is, half the value of the house (after deduction of the mortgage outstanding on it), being £59,910, less £21,376.50 to which the defender requires so as to acquire half of the matrimonial property).
[32] Although the parties advised me that the sale had been agreed and that the house was on the market, I thought it wise nonetheless to also grant an order requiring sale of the house to avoid any unforeseen difficulties as regards the current agreement. Providing that the marketing and sale of the house proceeds as it apparently has done so far, there will be no need for either party to rely on the order. I was told that the parties had agreed that the costs of sale will be met equally between them and that therefore there is no need for me to deal with that matter in this judgement.
[33] The Pursuer will also be entitled to the matrimonial property which was in her hands at the relevant date, including the sums in the sole bank accounts. She has already received the sum of £7,088.98 taken by her after the relevant date from the joint bank accounts for her own use. This method of division of the matrimonial property takes that fact fully into account.
[34] Therefore in summary, the parties will be entitled to retain and receive the following:
The pursuer
Matrimonial property in her possession at relevant date £33,523.59
Half share of remaining funds in joint accounts £2,543.46
Sums removed from joint accounts after relevant date £7,088.98
Half share proceeds from sale of house at agreed valuation £59,910
Counterbalancing payment from Defender £38,533.50
TOTAL 141,599.53
The defender
Matrimonial property in his possession at relevant date £117,679.58
Half share of remaining funds in joint accounts £2,543.46
Share of proceeds of sale of house at agreed valuation (after deduction of counter-balancing payment of £38,533 due to Pursuer) £21,376.50
TOTAL 141,599.54
[35] Once the house is sold, the proceeds should be divided speedily. I propose within 7 days of disbursement of the proceeds following completion of the sale, the defender must make payment to the pursuer of the specified counterbalancing sum.
[36] As regards expenses, I heard no submissions thereon. I will hear the parties anent same at a date to be hereafter fixed. However, if the parties can agree between themselves as to the question of expenses, they should advise the court and I will consider disposing of that part of the action without the need for further delay and expense.
Sheriff Derek O'Carroll, Advocate
Sheriff of Tayside Central and Fife at Alloa
2 May 2013
[1] It should be noted that this figure is not quite correct, the true figure being £141,599.54 as explained below.
