Scottish Court of Session Decisions

 

OUTER HOUSE, COURT OF SESSION   [2006] CSOH 55
F59/04	OPINION OF LORD CLARKE   in the cause   A S (AP)   Pursuer;   against   C S   Defender:     ­­­­­­­­­­­­­­­­­________________

 

 

Pursuer: Loudon; Lindsays, WS

Defender: M.A. Clarke; Drummond Miller

 

31 March 2006

 

Introduction

[1] This is an action for declarator of marriage by habit and repute. It is, perhaps, relatively unusual in that it is not an action by a pursuer seeking to establish that he or she had been married by cohabitation with habit and repute to someone who is now deceased. Both parties to the present action are alive and the action is defended. The matter came before me for proof.

[2] The undisputed facts are as follows. The pursuer became acquainted with the defender initially in or about 1987 when the pursuer was training as a nurse. They met up again in the summer of 1989 when both found themselves working at Ravenscraig Hospital, Greenock. On 15 July 1989 the pursuer married G R. Very shortly thereafter the pursuer and the defender started to co-habit. On 15 September 1991 a son, J C S was born to the parties. The parties continued living together, initially at property A in Greenock. They moved to property B in Greenock in 1994. The pursuer raised an action of divorce against G R which resulted in a decree of divorce being pronounced on 6 January 1995 (6/1 of process).

[3] On 24 November 1995 a second child C F S was born of the parties' relationship. A third child, C C S was born on 12 August 2002. The parties separated on or about 2 September 2003. The pursuer is now in a new relationship with another man.

 

The Evidence

[4] Those foregoing facts apart, the evidence I heard at the proof was to the following effect. The pursuer is 39 years of age. She is employed as a full-time nurse. She said that after the parties' first child was born she changed her surname from R to S. When living at property A in Greenock, the parties had used a name plate which had both the names R and S upon it. The pursuer said that some time after they had moved to property B in Greenock the name plate used by the parties simply referred to S.

[5] The parties purchased property B during 1994. The Land Certificate in relation thereto is 6/2 of process. The proprietorship section provides as follows:

"PROPRIETOR

C M S and

A R R or S

Spouses, property B, Greenock equally between them and the survivor of them".

The date of registration is stated to be 22 September 1994. Despite that reference to the parties being spouses, as at 22 September 1994, the pursuer, as has been seen, remained married to G R. The pursuer said that after she was divorced, the defender did not suggest that they should go through a marriage ceremony and she did not ask him to do so. As she put it "we did not see the need - it wouldn't have changed anything".

[6] The pursuer maintained that the parties' neighbours in E S took the parties to be married, as did their friends and work colleagues, and the members of the church which she attended, Ardgowan Evangelical Church. The pursuer said that the children's teachers and the doctors at the general practice, where the parties and the children were registered, also considered the parties to be husband and wife. She was designated as S on her passport (6/10 of process) which was issued in September 1995. Under reference to certain photographs (6/28 of process), the pursuer said that she always wore a wedding ring. That evidence, however, proved to be somewhat unsatisfactory since she eventually said that the ring in question was her grandmother's and that there had been no exchange of rings between herself and the defender.

[7] The pursuer, in evidence, said that she took responsibility for dealing with any workmen who had to carry out work at the parties' home and that she also took responsibility for the payment of utility bills. She did so under reference to 6/12, 6/19, 6/20, 6/21 and 6/22 of process which are addressed to Mrs A S. Insurance documentation 6/13, 6/14 and 6/15 was also referred to which is addressed to Mr and Mrs S, or in the last mentioned document, to Mrs A S. The pursuer maintained that when the parties were out together the defender would introduce her to strangers as Mrs A S. The defenders' parents, she said, always referred to her as their daughter-in-law and she would introduce them to others as her parents-in-law. She was referred to 6/4 and 6/23 of process, a birthday card and a Christmas card from the defenders' parents where they referred to her as their daughter-in-law and to themselves as her mother-in-law and father-in-law. When it came to the baptism of the third of the parties' children, the minister who was to carry out the service, the Reverend Alan Sorensen, asked for the date of the parties' marriage. He was told they were not married. The Reverend Sorensen asked the pursuer if she would like to go through a marriage ceremony at or about the same time as the christening. She had told him that she did not "feel any need to do that". The possibility of a "double ceremony" was mentioned by some of the parties' family and their friends. In cross-examination, the pursuer accepted that the defenders' parents had known that she was married to another man when the parties were cohabiting between 1989 and 1995. At the time of the third child's christening, the pursuer said that her relationship with the defender had begun to deteriorate. The pursuer reiterated that the defender usually introduced her to others as his wife. She accepted that the parties themselves never exchanged greeting cards in which they described each other as husband, or wife, as the case may be. She said they never discussed the question of marriage because they were happy as they were. It was not true to say that she raised the topic on a number of occasions and that the defender had "fobbed her off". It was not true to say that she had raised the subject with the defenders' parents.

[8] The parties took out a mortgage over their home in 2001. A copy of the standard security in relation to that mortgage is part of 6/2 of process. It is signed by both parties and is dated 28 September 2001. The parties signed C S and A S against the expression "the debtor". In the Standard Security appears the following: "C M S and A R S, spouses, both residing at property B Greenock".

[9] The pursuer's mother, Mrs R K, was led as a witness. She was aware that the parties had never gone through any formal marriage ceremony. The pursuer, she said, had never discussed with her the possibility of the parties going through such a ceremony. In general, the witness said, everyone knew the parties as husband and wife, as a married couple. As far as the witness herself was concerned, the parties were a married couple - they were "Mr" and "Mrs". She had been in the company of both of them when the pursuer referred to the defender as her husband but the witness agreed, in cross-examination, that this did not occur very often. Mrs K said that she had been present when the defender introduced the pursuer to others but she could not remember how he introduced the pursuer. The pursuer, the witness said, referred to the defenders' parents as "the in-laws".

[10] The next witness was Mrs Dorothy Twaddle. Her evidence, it has to be said, did not really advance matters much. She lives in the flat below the flat which the parties occupied at property B. She moved to her flat some five years ago. She described herself as a neighbour of the pursuer, but not a close friend of hers. Mrs Twaddle could not remember how the pursuer referred to the defender. She said, however, that the defenders' parents were introduced by the pursuer to her as her mother-in-law and father-in-law.

[11] Ms Margo Workman was led as a witness. She informed the Court that she had known the pursuer for about 20 years. She had known the defender longer. She had got to know both of the parties through working with them in nursing. She had become aware that a relationship had developed between the parties, in or about 1989, and that, in due course, they had a child. The witness said that she had thought that "R" was the pursuer's maiden name. The pursuer had changed her name to S after the parties' son J was born. Ms Workman said that she had thought that the parties had got married about that time. She did not know that the pursuer was already married. She had discovered a few years ago that the pursuer had no marriage certificate. This had come about because she had attended a meeting with a financial adviser, which was also attended by the parties, and it emerged, in discussion, that because the parties were not married they were not entitled to any rights in each other's superannuation. Ms Workman said that she went out with the pursuer on occasion socially, but did not go out with the parties as a couple. The pursuer, she said, would refer to the defender as her husband. The parties' children definitely believed their parents were married. The witness confirmed that at the time of the planned christening of the third child, there had been discussion about the parties not being married and that friends had raised the possibility of a "double ceremony".

[12] Evidence was led from Ms Maria Avari. She said she had known the parties from the time when the pursuer was training to be a nurse. She said she saw the pursuer every four weeks or so. She became aware of the parties living together 15 or 16 years ago and was aware that they had never been through a formal marriage ceremony, as she put it. The parties never mentioned the topic to the witness. The witness said that the parties' relationship was "very much the same as any couple married or not. They carried on their affairs as if they were married". She said that she had been in the parties' company, socially, when the pursuer referred to the defender as her husband. The witness particularly remembered the occasion, some 13 years ago, when she herself was married and, at the wedding, the defender was introduced by the pursuer to the witness's sisters as her husband. (This was at a time when the pursuer was still married to G R). Ms Avari maintained that when the couple were in social groups the defender introduced the pursuer as his wife. He would do so at children's parties.

[13] In cross-examination Ms Avari said that she was not often in the company of the parties, when they were being introduced to strangers, but she said that her recollection was that the defender most definitely did, on occasion, introduce the pursuer as his wife.

[14] In re-examination the witness said that the parties' close family and friends knew that no wedding ceremony had taken place.

[15] I next heard evidence from the Reverend Alan Sorensen who is a Church of Scotland Minister at the Mid Kirk Church, Greenock. He advised the Court that he had known the couple only since 2003. The pursuer's mother regularly attended his church. The parties wanted their third child baptised in his church. They advised him that they had not been married. The Reverend Sorensen did not consider that this was a barrier to the child being baptised. He said, however, that he had suggested that the parties might consider marriage. The pursuer had said that the family did not want a marriage ceremony. She had told the witness that she considered herself as married. Her children were not aware that the parties were not married and she did not see the need for a wedding ceremony. The parties were introduced to the church congregation, at the baptism ceremony, as Mr and Mrs S.

[16] I heard evidence from Miss Pamela Stewart. She has known the pursuer for eight years. She got to know the parties through having children of her own about the same age as the parties' children. She had taken it that the parties were married. There was nothing to indicate that they were not. All the other parents at the children's school treated them as if they were married. Just before the child, C C S, was christened, however, somebody in the parties' circle had said there could be two ceremonies, a baptism and a wedding.

[17] In cross-examination the witness said her impression was that at the time of the third child's christening, the pursuer did not want to go through a marriage ceremony because the parties' relationship was, at that stage, somewhat "rocky". The witness was aware that the pursuer had previously been married to someone called R.

[18] The last witness was Mr Ian McFadden. He is an elder at the Evangelical Church which the pursuer had attended for many years. Her former husband, G R, had also been a member of that church. Mr McFadden had known the pursuer for over 30 years. He had also known G R. The pursuer and G R had been married at the Evangelical Church.

[19] The witness had met the defender he said "after the children were born". He had assumed that the parties had been married but from a date that he was not sure about. He was aware that the children had the "S" surname and that the pursuer was using the name of "S". He recalled that the name plate with the name R had been removed at some stage from the parties' home. The pursuer had lost membership of the Evangelical Church when she went to live with the defender. She did not regain her membership but she did continue to attend the Church. She lost her membership because the Church did not allow parties living in adultery to be members of the Church. The pursuer had told the witness, after the parties' separated, that they had never been married and this had certain legal consequences.

[20] As well as the evidence adduced from the witnesses led at the proof, the pursuer relies on three affidavits, 6/24, 6/25 and 6/26 of process. The first two of the affidavits are from general practitioners, Dr Patrick Barr and Dr Anne Pettigrew, who practice at the medical practice attended by the pursuer and her children. They confirm in the affidavits that they considered the a parties to be married and that the records kept at the practice reflected that. The first named doctor had known the pursuer and her family for 12 years, the second named had known the pursuer for over 28 years. The third affidavit is an affidavit from Mrs Barrie Pert, the headmistress of Ard Primary School, Greenock. The two older sons of the parties attended that school. Mrs Pert, in her affidavit, confirms that both of these children were registered at the school with their parents described as Mrs A S and Mr C S. The registration form, however, did not disclose the marital status of the parents. The witness, however, until November 2005 understood the parties to be married.

[21] The defender elected not to give evidence nor was any other evidence led on his behalf.

 

The Law

[22] The theory of the present law in relation to marriage by habit and repute is stated in Clive: The Law of Husband and Wife in Scotland (4^th Ed.) at para 05.025 to be as follows:

".... if a man and a woman co-habit as husband and wife in Scotland for a sufficient time and are generally held and reputed to be husband and wife and are free to marry each other, they will be presumed to have tacitly consented to be married and, if this presumption is not rebutted, will be legally married."

In the present case the parties co-habited for over five years while the pursuer remained married to G R. They had their first child during that period. It has been authoritatively decided that when co-habitation has originally been illicit, it might be more difficult to establish marriage after the removal of the impediment. In Kamperman v Maciver 1994 SC 230 the Second Division, under reference to the case of Campbell v Campbell (1866) 4M 867 said (at p. 232) that

"In view of what the Lord Justice-Clerk and the other consulted judges in Campbell v Campbell said at p. 926, the fact that cohabitation has originally been illicit may mean that it is more difficult to establish marriage on the basis of cohabitation and repute after the impediment has been removed, and if that is so then evidence of the cohabitation and repute prior to the removal of the impediment is relevant at least to the question of whether some change in fact took place once the impediment was removed." (My emphasis)

The case of Campbell went to the House of Lords and is reported at that stage at (1867) 5M (HL) 115. At p. 135, Lord Cranworth, in a passage relied upon by the Second Division in Kamperman said as follows:

"Where a man and woman have lived together as man and wife, at a time when they could not be man and wife, and they continue to live together in the same manner after it has become possible for them to become man and wife, the question whether they have become man and wife is a question not of law but of fact. The law permits them to create that relation between themselves, and whether they have done so must be decided like any other question of fact. The circumstance that they represented themselves to be man and wife, when they knew they were not so, may reasonably be taken into account in estimating their subsequent conduct. It may neutralise the effect which would otherwise have been properly given to their subsequent co-habitation, ie, it may do so as a matter of fact. I cannot think it must do so as a matter of law. And if that be so, then all which any tribunal can do which has to deal with such a question is to look at all the circumstances, and consider whether they do or do not lead to the conclusion that the parties did contract marriage at some time after it was possible for them to marry."

In Low v Gorman 1970 SLT 357, the period of cohabitation after the impediment to marriage had been removed was only 10 months. In the previous period of five years, the parties were known to neighbours as husband and wife but some of their relatives knew that they had not been free to marry. Three children had been born and the register of births had been signed by the man as their father. On the facts, Lord Robertson said, at page 359,

"Although the repute need not be universal, it must be general, substantially unvarying and consistent, and not divided. (see Fraser on Husband and Wife, Vo1. 1, p. 402; Petrie v Petrie, 1911, SC 360, 1911, 1 SLT 43). In the present case, as already mentioned, the repute during the adulterous cohabitation did not satisfy the test and no change in this repute took place after 26^th February 1966 (the date on which the impediment was removed) or indeed could take place without some act on the part of the parties. There was no evidence to show that those who knew that the cohabitation was at the outset illicit were apprised of any alteration subsequent to 26^th February 1966 (the date on which the impediment was removed). In other words the cohabitation after that date by repute remained illicit - ie. without marriage."

[23] Since the law on the subject is based on the existence of tacit consent of both parties being married, it is obvious that both parties must, on the evidence, have conducted themselves so as to be held to be man and wife. As has been observed by Clive op. cit. at para. 05-034,

"The law on sufficient repute is difficult to apply in contemporary conditions. Ordinary cohabitation without matrimonial intent is common place. Most people do not regard a couple as married unless they have had a marriage ceremony. Names are not conclusive: people can call themselves what they like and other parties and other people know this.."

 

Discussion and Decision

[24] In this case the parties cohabited for more than five years before becoming free to marry. I am satisfied on the evidence, that their families knew that they were not married nor free to marry during that period. A significant aspect of the pursuer's own evidence was that she did not seek to differentiate the nature of the parties' relationship or its status in the period from 1989 until January 1995 from its nature and status thereafter. The question of marriage was never discussed between the parties after January 1995 because "we did not see the need - it would not change anything". In cross-examination she said that the parties "were happy as they were". I am prepared to accept the pursuer's evidence that she referred to the defender as her husband when in company and introduced him to others as such. But she did not suggest that that was something she only started to do after she was divorced. The only specific occasion which Ms Avari referred to in her evidence, on which she said she heard the pursuer introducing the defender as her husband was some 13 years ago which was at a time when the parties were not free to marry. The affidavit evidence of Dr Barr and Dr Pettigrew, 6/24 and 6/25 of process, indicates that the parties were regarded as husband and wife at the general practice they attend but they were so regarded for some time prior to January 1995 when they were not free to be married. As has been seen, the parties were described as "spouses" on the title sheet to their home at property B as at the date registration of the title, 22 September 1994 when they were not free to marry (6/2 of process). There was no evidence before me that indicated that there was any real change in the way the parties regarded their relationship after January 1995 or in how, indeed, that relationship was viewed by their family, friends, and others with whom they had contact. The parties' families knew that the parties were not free to marry before January 1995. Mr Ian McFadden knew this also. My overall impression of the evidence was that the parties never considered in their own minds that their situation was any different after the pursuer's divorce, from what it had been before. Their relationship continued exactly as before. There was no change in the way they represented themselves to others. There was, for example, no exchange of rings. (As I have already indicated, it was an unsatisfactory feature of the pursuer's own evidence that initially she sought to suggest that she wore a wedding ring but eventually accepted that the ring she wore was her grandmother's and that there had been no exchange of rings between parties). The parties had lived together for five years or so and, in my view, saw no change in the nature of their relationship or how it should be regarded by the rest of the world after January 1995. On the evidence, therefore, in my judgment, the pursuer has not surmounted the obstacle of demonstrating that the cohabitation which had endured for five years and was illicit, had been altered after January 1995 due to tacit consent between the parties that they should be married. The pursuer's own evidence, which I have quoted above, in my opinion is reflective of both parties being happy to remain, as averred by the defender "as a modern cohabiting couple", without being married.

[25] There was another feature of the matter which leads me to the conclusion that the pursuer has not established her case. In the case of Ackerman v Logan's Executor 2002 SLT 37, an Extra Division appeared to accept, at pages 42-43, a test applied by the Lord Ordinary in that case that for the pursuer to establish marriage by cohabitation with habit and repute, the evidence of habit and repute should be general and consistent such as not to leave any substantial doubt that the inference of consent should be drawn.

[26] In the present case the defender was not led by the pursuer as a witness. He himself chose not to give evidence on his own behalf, nor was any other evidence led on his behalf. The evidence of himself holding himself out as being married to the pursuer was not, in my judgment, compelling. The pursuer's own mother said she could not remember the defender introducing the pursuer and she agreed, in cross-examination, that it was not often that the pursuer referred to the defender as her husband. Ms Twaddle could not remember how the pursuer referred to the defender although she did recall the pursuer introducing the defender's parents as her mother-in-law and father-in-law. Ms Avari gave some general evidence that, in company, the defender introduced or referred to the pursuer as his wife but I did not find the evidence of this witness, taken as a whole, to be very satisfactory. She was, at pains, to highlight the one occasion, 13 years ago, at her own wedding, when the pursuer, she said, introduced the defender as her husband to her sisters. This witness said that she had seen the couple regularly over the years and I found it surprising that she sought to single out this particular occasion, if the position was that the pursuer and the defender regularly referred to each other as husband and wife. The witness, Ms Pamela Stewart, said that the parties just referred to each other as C or A as the case may be. The defender did represent himself as the pursuer's spouse in the standard security granted for the purpose of mortgaging the property at property B (6/14 of process). The significance of that however, is, in my view, somewhat reduced by the fact that, as has been seen, that was how he described himself in the title to the property when it was registered in 1994, at a time when the couple were not free to marry. Accordingly, on the evidence adduced at the proof I am left with a substantial doubt as to the defender's position in relation to how he regarded himself and how he represented himself to the rest of the world. The evidence, in relation to his position, such as it was, in my judgment, is just as consistent with his attitude being that the parties' relationship remained the same throughout the whole period of cohabitation and that he did not have any matrimonial intention, after January 1995, but was simply happy to carry on his relationship with the pursuer, as before, when they were not free to marry.

[27] For the foregoing reasons I shall sustain the defender's plea-in-law and refuse to pronounce decree of declarator as concluded for.