Stirling sheriff refuses to transfer council tenancy to divorcing wife after finding her case not credible

About this case:

• Citation:
  [2025] SC STI 63
• Judgment:
  External link
• Court:
  Sheriff Court
• Judge:
  Sheriff Keith O'Mahony

Pursuer H sought a transfer of the tenancy under section 13(1) of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 from defender I, whose unreasonable behaviour was the basis of the divorce. Grant of divorce was not opposed by the defender, but he argued that the pursuer had not pled a suitable case to warrant transfer of the tenancy.

The case was heard by Sheriff Keith O’Mahoney at Stirling Sheriff Court. Bryson, solicitor, appeared for the pursuer and Bhatti, solicitor, for the defender.

Grabbed by the throat

The parties were married at Gretna Green in July 2018 and lived together as man and wife until the end of January 2024. They lived in a terraced house rented from the local authority, which the defender had been the sole tenant of since June 2011. Both parties had contributed to rent and the maintenance of the property but following their separation the defender moved in with his mother.

Evidence was heard from the parties and from the defender’s mother, L. The pursuer gave evidence that, at the end of January 2024, she returned home from a shopping trip and had an argument with the defender in which he grabbed her by the throat and said he was going to kill her. She managed to strike him on the head with a nearby object and called the police, who had a struggle with the defender when they attended the property. The only charges that resulted from the altercation were four charges in relation to the defender’s conduct towards the police officers, and he ultimately pled guilty to two of them.

The pursuer claimed to have been the subject of abusive behaviour by the defender for many years but led no corroborating evidence in support of her position. She prayed in aid evidence she had reported domestic abuse to her GP and the police and sought the help of Women’s Aid and further noted that the defender had been involved in disputes with neighbours over the years over parking and DIY work carried out in a nearby garden.

While the defender accepted that the neighbourhood disputes had taken place, he did not accept the pursuer’s characterisation of those events, arguing he was the wronged party in each dispute. Moreover, these were two occasions over the course of 13 years of living in the property and would only impact fleetingly on the question of suitability.

Not entirely truthful

In his decision, Sheriff O’Mahoney noted an attempted change in the defender’s position on grounds of divorce: “At a hearing on the 29 October 2024 those acting for the defender had indicated that crave one, that being a crave for divorce on the basis of the defender’s unreasonable behaviour, was not opposed. On the date of proof the defender’s solicitor sought to reverse from that undefended position, presumably on the basis that she feared such a concession as regards the defender’s behaviour would have an adverse effect on the strength of the defender’s argument in the remainder of the cause. Instead, she sought decree of divorce on the basis of non-cohabitation.”

The sheriff rejected the change in position, explaining: “No minute of amendment had been received and the defender has had the benefit of legal representation throughout the course of the action. Accordingly, I granted the undefended crave for divorce on the basis of unreasonable behaviour. The court is not bound by that suggestion of unreasonable behaviour in its determination of the remainder of the action. It remains incumbent upon the court to consider the evidence in relation to the alleged behaviour of the defender in assessing what orders are appropriate relating to the matrimonial home.”

Taking the view that there was “little to choose” between the parties in respect of the tenancy, Sheriff O’Mahoney said: “There is nothing independent in the evidence that would allow me to reach an adverse inference as regards the defender’s credibility. He has one relevant previous conviction – relevant because it carries a domestic aggravator – and it is 11 years old. The other chapters of evidence relied upon by the pursuer are all disputed and her position is not supported by anything independent.”

He concluded: “Indeed, on the question of credibility, the evidence of L is informative. She spoke to the pursuer being untruthful with the police during the event in January 2024. Given her relationship with the defender I treat her evidence with some caution, but ultimately, I found her to be generally reliable and credible and was satisfied that that the pursuer had not been entirely truthful in her account of that day. That causes me to question the evidence of the pursuer in relation to all other matters.”

Having determined that the test under the 1981 Act had not been met, Sheriff O’Mahoney granted divorce but refused the crave for transfer of the tenancy.