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17 May 10

A survey of cases since s 28 of the Family Law (Scotland) Act 2006 came into force

by Rachel Shewan, Sharon Murray

Cohabitants’ rights have been with us now for four years, since the Family Law (Scotland) Act 2006 came into force.

Section 28 contains the financial provisions available where cohabitation ends otherwise than by death. The court may order a former cohabitant to pay a capital sum to the other cohabitant, payment of a sum in respect of any economic burden of caring, post-cohabitation, for the cohabitants’ child, and make such interim order as it thinks fit.

An application for an order has to be made within one year of the cessation of cohabitation. Orders should be made having regard to the extent of any economic advantage derived, and disadvantage suffered, by the respective parties.

There is, to date, very little by way of judicial guidance in relation to these rights. What can we learn from cases to date?

Fairley v Fairley 2008 FLR 112

This was a preliminary proof on the date of separation. The court found on the evidence that the action was pursued within the statutory time limit.

C v S 2008 SLT 871

The parties had cohabited for eight years and had two children. A capital sum and child cost claim was sought. Lord Matthews saw the Family Law (Scotland) Act 1985 and case law as relevant, particularly in relation to balancing the advantage/disadvantage claims. There is comment on the financial vouching needed for this type of case. A small capital award was made, and a child costs award, broadly taking into account after-school care costs and applying a multiplier. Interestingly, the child costs award was payable in instalments, akin to aliment.

Jamieson v Rodhouse 2009 FLR 34

The parties had lived together for some 30 years. There were a number of property moves in that time. At separation, they were living in a property in the defender’s sole name. The pursuer sought a share of the capital value. The defender had paid mortgage, rates, council tax, household bills and for certain home improvements. The pursuer had paid for food for the family, financially supported herself and her son and done all cooking and housework. The sheriff considered the balance of economic advantage and disadvantage, in relation to which there was a lack of vouching. He recognised that the pursuer had the advantage of staying in the property, without having to pay for it. Offsetting the advantage/ disadvantage, he considered there was no imbalance to be compensated.

If nothing else, this case highlights the need for, and type of, financial vouching. The sheriff was not persuaded by cases involving s 9 of the 1985 Act.

Falconer v Dodds 2009 FLR 111

The parties had cohabited for about five years and had a child. The house was in the defender’s sole name. The pursuer paid for certain household outlays. The defender paid others, and the mortgage. The defender sold the house after the relationship ended and received the whole proceeds. A claim was made for a capital sum and in relation to child costs. There is commentary on the financial vouching that should be available to the court. Balancing the vouched positions, a capital sum was awarded. An award was also made re the parties’ child, and a multiplier applied to care costs as in C v S.

Gow v Grant 2010 GWD 7-125

The parties had cohabited for six and a half years. The pursuer sold her flat to move in with the defender. The defender’s property increased in value during the cohabitation. Both parties contributed to its running costs. They acquired other items together. The sheriff proceeded on the basis that the defender persuaded the pursuer to sell her property to further their relationship, and made a compensatory capital award, taking into account the financial disadvantage suffered by the pursuer. The sheriff was not persuaded that 1985 Act cases were relevant. (This case is under appeal.)

In summary, the approach the courts will take under s 28 is still by no means clear. It leaves the practitioner in a rather difficult position when it comes to preparing a case for proof. Should we do so on the basis of a balancing exercise of economic advantage and disadvantage (C v S), or looking more at a compensatory approach (Gow v Grant)? Whichever is the case, it is clear that detailed financial vouching, in relation to any claimed advantage or disadvantage, is necessary.

We need more case law. Although there is a short time limit for making a claim, very few cases have, as yet, gone to proof. We can only speculate as to why. Is it the lack of a straightforward formula for a capital claim? Is it lack of awareness of rights? Are parties just taking a practical view and sorting things out themselves? Perhaps the answer will become clearer when the legislation has been with us a little longer.

  • Rachel Shewan and Sharon Murray, Family Law Team, Morton Fraser

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