ELAINE GUTCHER RESIDING AT 2 WARD'S PARK. ST. MARGARET'S HOPE, ORKNEY, KW17 2TS (AP) AGAINST NEIL BUTCHER, RESIDING AT THE GROVE, WHARNCLIFFE SIDE, SHEFFIELD, S53 UEA

ELAINE GUTCHER, residing at 2 Ward’s Park, St Margaret’s Hope, Orkney KW17 2TS (Assisted Person)

[1] In this action, the pursuer seeks a capital sum in terms of Section 28 of the Family Law (Scotland) Act 2006. The parties agreed that there should be a preliminary proof to establish whether – and for what period – they were cohabitants in terms of Section 25 of the Act. The sheriff held on the evidence that they were not cohabitants. He dismissed the action, although absolvitor would have been more appropriate – a point not taken by the respondent. The appellant appeals against that decision.

[3] This lack of proper focus on the task in hand also extended to the selection of witnesses to be led at the proof and what those witnesses might contribute to an understanding of the relationship between the parties for the purposes of the Act. As the sheriff describes in his note to his judgment, it is plain that for him many of the witnesses were of little and sometimes of no assistance.

The parties first met each other in June 2003 in Sheffield. They went out together for a time, but eventually went their separate ways. However, they were reunited at some point in 2007. The exact date is not contained in the findings in fact, but on the evidence it appears to have been in May of that year. (The respondent’s pleadings state more than once that this issue is not known and not admitted – a position which probably reflects more on the technical failures of the respondent’s pleader, rather than on the respondent himself.)

The respondent sold his house in Sheffield and moved to Orkney sometime in 2006. In January 2007 he purchased a house known as West End, St Margaret’s Hope, Orkney.