Sheriff Appeal Court rejects relevant date appeal by man who lived in wife’s property following relationship breakdown

About this case:

• Citation:
  [2022] SAC (Civ) 12
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Appeal Sheriff McCartney

The sheriff had found that cohabitation as husband and wife was established up to 23 January 2019. It was contended by Alan McLeish that the relevant date was 22 October 2016, as he did not have a key to the property for the entire period following that date. A cross-appeal was entered by the respondent, Phyllis Carroll or Cockburn or McLeish, challenging the finding that she had invited the appellant to continue living with her.

The appeal was heard by Sheriff Principal Craig Turnbull, sitting with Appeal Sheriffs William Holligan and Thomas McCartney. Brabender QC appeared for the appellant and Malcolm QC appeared for the respondent.

Current living arrangements

It was the sheriff’s finding in fact that the appellant had stayed overnight at the respondent’s property regularly at her invitation, albeit he did not have a key. Counsel for the appellant contended that in order to establish that the parties were “living together” it was an essential requirement that the place they were living was fully accessible to both of them.

Counsel for the appellant submitted further that no reasonable sheriff could have reached the decision that the parties were still living together in January 2019 having regard to the evidence. It was noted that the sheriff had assessed a witness for the appellant who spoke about his current living arrangements, Jessica Black, as being credible and reliable, and there had been no evidence to support a finding that the parties’ financial arrangements remained the same from their marriage until 23 January 2019.

In her cross-appeal, the respondent argued that it had not been open to the sheriff to make a finding that the appellant had stayed regularly at her property at her invitation. The sheriff preferred the evidence of the respondent to that of the appellant, thus the only conclusion available was that, while the appellant stayed overnight regularly at the respondent’s property, it had not been by invitation.

Addressing the appellant’s arguments, it was submitted that there had been no error in the approach taken by the sheriff. The conclusion he reached was one that was open to him on all the proved facts and he exercised his judgment in an entirely reasonable manner. The evidence of Jessica Black, while considered reliable, did not add any weight to the contention that the parties did not resume cohabitation after October 2016.

Plainly wrong

Delivering the opinion of the court, Appeal Sheriff McCartney began: “Each case turns upon its own facts. There is no fixed check list. The court looks at all of the evidence, attaching what it considers the appropriate weight to the various factors having regard to the particular relationship between the parties. We do not consider that there has been any error of law on the part of the sheriff.”

He continued: “The sheriff made findings in fact on a number of relevant factors, including residence at the respondent’s property and elsewhere, financial arrangements, sleeping and living arrangements, sexual relations, holidays, refurbishing their property in Spain, socialising, attending events, practical and emotional support and presenting themselves as a couple. It is not suggested that evidence of any material factor was left out of account.”

Turning to the respondent’s cross-appeal, the sheriff observed: “The respondent’s clear evidence was that the appellant’s attendance overnight at her property was not by invitation. The tenor of the evidence contained within text messages to which we were referred tends to support the evidence of the respondent. The sheriff accepted the respondent’s account in relation to the marital arrangements which subsisted during the various periods of cohabitation and separation and, particularly, in relation to the parties’ living arrangements.”

He concluded: “The sheriff records that where the appellant’s evidence differed from or contradicted that of the respondent, he preferred the evidence of the respondent . On that basis, the sheriff has gone plainly wrong in a manner that cannot be reasonably explained or justified in finding that the appellant stayed overnight at the respondent’s property regularly at the respondent’s invitation.”

For these reasons, the appellant’s appeal was refused. The respondent’s cross-appeal was allowed to the extent of varying the sheriff’s interlocutor to remove the reference to the appellant staying overnight at the respondent’s invitation.