Factual and Procedural Background
This opinion concerns a reclaiming motion in a divorce and financial provision action raised by the husband (Appellant) against the wife (Appellee). The preliminary issue before the Lord Ordinary was the determination of the correct "relevant date" for fixing and valuing the matrimonial property. The Lord Ordinary held that the relevant date was 6 January 2020, a decision from which the husband appealed.
The parties married in 1998 and have four children. They lived as a family in Australia from 2013 but from August 2016 the husband and one child returned to Scotland, with the parties thereafter spending time together mainly during holidays. Difficulties arose in late 2017 when the husband discovered evidence of the wife's infidelity. Despite this, the parties continued to communicate and spend holidays together until January 2020, when the wife and three younger children left on a cruise without the husband or eldest child. The husband purchased a property in Edinburgh in 2019 without informing the wife.
The Lord Ordinary conducted a preliminary proof on the relevant date issue, taking evidence over nine days. The husband contended the relevant date was either 30 December 2017 or March 2018, while the wife asserted it was 6 January 2020. The Lord Ordinary found that cohabitation continued until the wife's departure on the cruise in January 2020.
Legal Issues Presented
- What is the correct "relevant date" for the purpose of fixing and valuing the matrimonial property under the Family Law (Scotland) Act 1985, section 10(3)?
- Did the Lord Ordinary err in law by focusing on a limited period rather than the entire cohabitation period?
- Did the Lord Ordinary's conduct during the proof amount to unfairness affecting the proceedings?
- Was the Lord Ordinary's assessment of the credibility and reliability of the parties' evidence flawed?
Arguments of the Parties
Appellant's Arguments
- The Lord Ordinary erred in law by focusing only on a disputed period rather than the entire cohabitation period to identify the relevant date.
- The Lord Ordinary incorrectly treated the issue as a choice between two dates, rather than identifying any objectively correct date supported by evidence.
- The husband's fallback position was that cohabitation ended by summer 2018, supported by cessation of affectionate messages, last sexual intercourse, and lack of recognition of the 20th wedding anniversary.
- The conduct of the Lord Ordinary during the proof was unfair, with excessive and inappropriate judicial interventions amounting to a "descent into the arena," undermining procedural fairness.
- The Lord Ordinary's assessment of credibility was flawed and inconsistent, preferring the wife's evidence despite admitted untruthfulness and rejecting evidence from the husband's witnesses on incorrect grounds.
- The appellate court should substitute its own decision if errors are found, potentially fixing the relevant date as summer 2018 at the latest.
Respondent's Arguments
- There was no basis to interfere with the Lord Ordinary's decision; nine days of evidence supported the relevant date as 6 January 2020.
- The Lord Ordinary properly focused on the disputed period relevant to the parties' positions and did not ignore earlier periods.
- The confrontation in December 2017 was considered but did not signify separation; no communication thereafter indicated separation until after January 2020.
- The Lord Ordinary's conduct during proof was within acceptable judicial styles; interventions were not unfair or biased and did not prevent proper cross-examination.
- The assessment of credibility and reliability was a matter for the Lord Ordinary, who was entitled to prefer the wife's evidence on key issues.
- The husband's change in fallback position was vague and unsupported by the evidence as a whole.
- The appellant must show no reasonable judge could have reached the same conclusion to succeed, which was not demonstrated.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| HS v FS [2015] SC 513 |
Definition and determination of "relevant date" for matrimonial property valuation; objective assessment of cohabitation cessation. |
Guided the court's understanding of the relevant date test and supported the approach that the decision must be fact-sensitive and objective. |
| Banks v Banks 2005 Fam LR 116 |
Factors relevant to determining cessation of cohabitation; no exhaustive list; objective assessment required. |
Referenced as authoritative guidance on the legal test and the court's task to identify the correct date from evidence. |
| Yuill v Yuill [1945] 1 All ER 183 |
Judicial conduct during evidence; prohibition on judge "descending into the arena" to preserve fairness. |
Used to assess whether the Lord Ordinary's interventions during proof rendered the proceedings unfair. |
| K v L (Children: Fairness of Hearing) [2023] 4 WLR 61 |
Modern approach to judicial intervention during evidence; balancing case management and fairness. |
Considered in evaluating the Lord Ordinary's style of intervention and whether it was within acceptable bounds. |
| MacLeod's Legal Representatives v Highland Health Board 2016 SC 647 |
Limits on appellate court's power to order rehearing where unfairness is alleged. |
Supported the position that this court could decide the matter of unfairness and substitute a decision if necessary. |
| McGraddie v McGraddie 2014 SC (UKSC) 12 |
Standard of appellate review on findings of fact and credibility; deference to first instance judge. |
Reiterated the limited scope for interference with the Lord Ordinary's findings absent unreasonableness. |
| Henderson v Foxworth Investments Limited [2014] SC (UKSC) 203 |
Appellate review of errors of law and fact; materiality of error required for interference. |
Referenced regarding the threshold for appellate interference in errors of law. |
| Thomas v Thomas 1947 SC (HL) 45 |
Court's discretion and approach to credibility assessments. |
Supported the principle that credibility assessments are primarily for the first instance judge. |
| Serafin v Malkiewicz [2020] 1 WLR 2455 |
Unfair hearing cannot be cured by a subsequent reasoned judgment. |
Discussed in relation to the consequences of unfair conduct during evidence. |
Court's Reasoning and Analysis
The court first examined the legal framework under the Family Law (Scotland) Act 1985 and relevant case law, confirming that the relevant date for cessation of cohabitation is an objective factual determination based on all available evidence. The court rejected the appellant's argument that the Lord Ordinary erred by focusing on the period from 2016 onwards, finding that earlier periods were considered but had little bearing on the dispute.
Regarding the alleged error of limiting the choice between two dates, the court found that the Lord Ordinary had objectively assessed the evidence and concluded that no date earlier than 6 January 2020 was supported. The court noted the Lord Ordinary's detailed consideration of the disputed period and events in 2019, including the property purchase, which were not decisive against the later date.
On the issue of judicial conduct, the court acknowledged a high number of interventions by the Lord Ordinary but concluded that only a small subset were potentially unfair. The court analyzed seven specific examples and an additional one, finding some interventions inappropriate and unorthodox but not sufficient to render the proceedings unfair. The court emphasized the necessity of judicial circumspection during evidence but accepted a range of judicial styles. There was no evidence of rudeness, hostility, or bias, and counsel were able to conduct thorough cross-examination.
Concerning credibility and reliability, the court reiterated that these matters lie primarily with the first instance judge. It found no error in the Lord Ordinary's acceptance of the wife's evidence on key points despite her earlier untruthfulness, as credibility can vary across different parts of testimony. The court rejected the appellant's contention that the Lord Ordinary's findings were plainly wrong.
Overall, the court found no material error of law, no procedural unfairness sufficient to vitiate the proceedings, and no flawed assessment of credibility that would justify appellate interference.
Holding and Implications
The court REFUSED THE RECLAIMING MOTION and upheld the Lord Ordinary's determination that the relevant date for cessation of cohabitation was 6 January 2020.
The case is remitted for further proceedings on financial provision before a different Lord Ordinary, with the expectation of more expeditious progress. No new precedent was established, and the decision affirms the established principles regarding the objective assessment of cohabitation cessation and the limits of appellate intervention in findings of fact and judicial conduct during proof.