Abusive husband fails in financial claim in divorce action

The court granted the pursuer’s application for divorce after finding that the marriage of the parties had “broken down irretrievably” as established by their non-cohabitation for two years, but held that the pursuer failed to discharge the onus of proving an entitlement to a claim for financial provision.

The sheriff added that, in any event, given the pursuer’s conduct during the course of the marriage, it would have been inappropriate to grant an equal division of the matrimonial property.

Sheriff Aisha Anwar at Glasgow Sheriff Court heard that the parties “AF” and “AF” were married in 1984 in Pakistan, where they lived together until around 1999 and had four children, all of whom are now over the age of 16.

The pursuer came to the UK in 1999 and the defender came to the country two years later, but she was unable to work in the UK until 2008, when she set up a beauty salon business.

The court was told that throughout the parties’ marriage the pursuer was physically abusive and aggressive towards the defender. 

He drank to excess, gambled and did not contribute to the household finances while in the UK, nor did he assist with childcare or other family responsibilities.

The pursuer was convicted of assaulting the defender in 2008 and the parties separated in February 2013, when the defender raised proceedings in the sheriff court and was granted interim interdicts prohibiting the pursuer from (a) molesting the defender by abusing her verbally, by threatening her and thereby placing her in a state of fear and alarm and distress, or by using violence towards her and (b) from damaging or destroying the matrimonial home or any items of furniture or plenishings therein. 

The parties have not cohabited since.

In or around mid-February 2013, after service of the interim interdicts upon him and while the defender was in Pakistan, the pursuer entered the matrimonial home with cutting and drilling equipment and attempted to access a safe in the defender’s bedroom, but was unable to do so.

In 2014, the pursuer was convicted of a domestic offence, in contravention of section 38 of the Criminal Justice and Licensing (Scotland) Act 2010, and was made subject to a three-year non-harassment order, which required him to refrain from approaching, contacting or communicating with the defender, and to refrain from entering the former matrimonial home.

The pursuer, who had been removed from the UK by the immigration authorities on two occasions, had never been entitled to work in the UK and current immigration status was unknown.

At the time of separation, the matrimonial assets included the matrimonial home valued at £220,000, title to which was held by the defender and her eldest son as joint proprietors to the extent of 75% and 25% respectively.

The defender and the parties’ son “OF” paid for nearly £100,000 worth of improvements and renovations to the matrimonial home, and had been responsible for all payments in respect of the mortgage, while the pursuer contributed nothing to the cost of property improvements or of daily living.

The matrimonial assets also included: a plot of land in Renfrewshire with a value of between £5,000 and £10,000; and two further plots of land in Renfrewshire with nil values, title to each plot being held by the defender; the defender’s interest in a beauty salon business valued at £30,000; £4,315 representing a payment arising from an insurance claim in respect of stolen jewellery; a residential property in Pakistan known as “Bilal Town House”, which was purchased using funds provided by the defender and OF, title to which was held by the pursuer but the value of which was unknown; a plot of land in Pakistan known as “Mousa Salhad-1”, title to which is held by the defender, the value of which was unknown and upon which the pursuer’s siblings erected and occupied a residential property without the defender’s consent; and the pursuer’s interest in a plaza, residential buildings and land in Pakistan, the value of which was also unknown.

The sheriff described the pursuer’s evidence as “confused, contradictory, rambling” and “entirely lacking in credibility”, adding that defender’s evidence was also “unreliable”.

She said the case demonstrated the need for “greater case management powers” in relation to cases involving craves for financial provisions upon divorce, adding that the absence of judicial case management powers limited the court’s ability to make prior rulings on the admissibility of expert evidence.

In a written judgment, Sheriff Anwar said: “In light of the unsatisfactory evidence before the court, the court simply cannot exercise its discretion and apply the principles set out in the Family Law (Scotland) Act 1985. The court is empowered to make an order only if it is justified by the principles enunciated in sections 8 and 9 of the Act. Where the net value cannot be ascertained or inferred, the court cannot make an award – to do so would be, in the words of Sheriff Dean in George v George 1991 SLT 8 ‘a pure guess and justice is not done by guess work’. The onus of establishing an entitlement to a claim for financial provisions rests on the pursuer. He has failed to discharge that onus.

“I should add that even if all of the required information had been before me, taking account of (a) the special circumstances which existed in this case, in terms of section 10(6) of the Act, namely the source of funds used to purchase Bilal Town House, and the land in Renfrew; (b) the conduct of the pursuer in terms of section 11(7) of the Act, namely his dissipation of the family finances through his gambling, and his lack of contribution to the household financial or otherwise caused inter alia by his inability to earn and his repeated removals from the UK; and (c) the defender’s payment of all costs of maintenance, renovations and mortgage repayments in respect of the matrimonial home since the relevant date, I would not have considered it appropriate to grant an equal division of the matrimonial property.”