Allan Neill, the defender and appellant, who was not opposed to the granting of the divorce, argued that the sheriff had erred in allowing additional affidavit evidence to be lodged on behalf of the pursuer and respondent, Carol Hillan, following the closing of the case, as well as in matters relating to the matrimonial home and expenses. 

The appeal was heard in the Sheriff Appeal Court (Civil Division) by Appeal Sheriff Braid, sitting with Appeal Sheriff Murphy and Appeal Sheriff Holligan. 

No opportunity to dispute 

The defender and the pursuer each owned a 50 per cent pro indiviso share in the matrimonial home. Following proof, the sheriff granted decree of divorce and ordered the defender to transfer his share of the matrimonial home to the pursuer as well as pay her a lump sum of £45,000, capitalised from a periodic sum over five years, to address financial inequalities, in addition to £750 per month for six months while the pursuer adjusted to her new circumstances. 

During proof, evidence in relation to the merits was given by affidavits of the pursuer and her mother, neither of whom was cross-examined on them. The defender also gave parole evidence, mostly in respect of the financial craves sought by the pursuer. At the conclusion of the evidence the sheriff formed the view that divorce was not justified on the grounds of the defender’s behaviour due to insufficiency of evidence on the merits. 

An email was sent by the sheriff clerk to the parties stating that they may wish to amend the grounds of divorce to one year’s non-cohabitation with consent. After seven days had passed, the pursuer’s agent lodged supplementary affidavits without intimating copies of them to the defender’s agent, who had yet to submit any material on the proposed amendment. 

The sheriff subsequently issued his judgment granting decree of divorce on the original grounds sought, in which he recorded that the pursuer had adopted the supplementary affidavit as part of her principal evidence in chief. It was submitted for the defender that the sheriff had erred in asking for, and having regard to, this further affidavit. The defender had no opportunity to dispute its accuracy, which he would have done.  

This was particularly important in regard to the evidence of the pursuer’s mother, which painted the actions of the defender in a highly negative light. It was argued that the sheriff’s expressed negative views of the defender were partially a result of the influence from the supplementary affidavits. 

It was also submitted that there was no reasoned basis for the financial award that was discernible from the sheriff’s decision or from the Family Law (Scotland) Act 1985. The sheriff had decided what result he wanted to achieve and worked back from that. Further, the capitalisation of the period sum was done with no legal basis. 

Uncertain who was “at fault” 

The opinion of the court was delivered by Appeal Sheriff Braid. Addressing the sheriff’s use of supplementary affidavits, he said: “There is no doubt that it is contrary to natural justice for a judge to have regard to evidence which has effectively been obtained behind the back of one of the parties and on which that party has no opportunity to comment. While the sheriff did not ask in terms for supplementary affidavits, it was his enquiry which led to their being lodged. The more difficult question is what effect, if any, the breach of that principle has on the decision reached by the sheriff.” 

He continued: “The sheriff was, on his own account, uncertain which party was ‘at fault’ before the supplementary affidavits were submitted. Given that he clearly thereafter expressed an adverse view of the defender, how can it be said that he was not influenced to an extent by the material in the supplementary affidavits? The fact is that the sheriff was not satisfied on the merits before he had read the supplementary affidavits, but was so satisfied having done so.” 

Turning to the other grounds of appeal, he said: “If an award of periodical allowance can be capitalised in such a way as to achieve the section 9 [of the 1985 Act] principles, and the order of payment of capital is reasonable, then the court is prevented by section 13(2) from making an award of periodical allowance in the first place.” 

He continued: “The illogicality of the sheriff’s approach is further exemplified by the submission of counsel for the pursuer that that approach was reasonable given that the pursuer was someone in need of ongoing financial support, the irony being that the award which was made had the effect of depriving her of that very support.” 

He concluded on this matter: “The matrimonial property has in fact been divided unequally; and since counsel for the pursuer expressly disavowed any argument that special circumstances existed justifying unequal division, it is difficult to see that the order for the transfer of the house to the pursuer achieves a fair distribution of the matrimonial property in accordance with section 9 of the 1985 Act. ” 

Adjustment to separation 

Regarding the disposal of the appeal, further submissions were invited from the parties, who agreed that it should not be remitted back to the sheriff court for reconsideration. Decree of divorce was granted of new by the Sheriff Appeal Court on the original grounds sought by the pursuer, in light of the defender not being opposed to divorce. 

In respect of the former matrimonial property, the defender was ordered to pay £41,500 to the pursuer as a balancing sum, with the former matrimonial home to be sold and the proceeds divided equally. The parties were left to agree the particulars of the process of sale themselves. 

Regarding any periodical allowance to be paid to the pursuer, Appeal Sheriff Braid said: “We are satisfied that the pursuer requires to adjust to separation and that this adjustment cannot be achieved by means of an award of capital. The pursuer is likely to use such capital as she has, and will have, in order to purchase a new house. However, we are not persuaded on the facts that the pursuer requires more than the £750 per month she has been receiving from the defender for a significant period of time in order to adjust to the separation.”  

Thus, periodical allowance of £750 per month for a period of two years from the granting of the divorce was awarded. In relation to expenses, the court found none due to or by either party in respect of the original action, with appeal expenses awarded in favour of the defender.