Ten years of cohabitation claims
Family briefing: an assessment of the current position regarding cohabitant claims under s 28 of the Family Law (Scotland) Act 2006
The Family Law (Scotland) Act 2006 is a significant milestone in the history of Scottish family law. This year marks the 10th anniversary of the Act coming into force, and it is appropriate to reflect on how far we have come in that time in relation to one of the most significant sections, s 28, which allows cohabitants to seek financial provision on separation. Prior to the Act, cohabitation was not generally acknowledged as having legal consequences.
The drafting of s 28 was widely criticised by academics, practitioners and judges alike. The test it set out was not sufficiently clear; it was difficult to interpret and therefore difficult to advise clients on their prospects of success and the value of any potential claim. This, coupled with a requirement to raise a claim within one year of separation, posed difficulties. Ever since the Act came into force, family lawyers have pored over every fragment of commentary on the interpretation of s 28 as it was reported.
The reported case law has appeared slowly over the past 10 years. It demonstrated a variety of approaches by the courts, with a number of lines of thought but no consistent approach.
The Supreme Court decision in Gow v Grant  UKSC 29 clarified the law and gave the section a broader and more natural interpretation than had been adopted by the lower courts. It held that the underlying principle of s 28 is one of fairness, and the section is designed to correct any overall net imbalance arising from contributions made or economic disadvantage suffered in the interests of the relationship.
The 10-year anniversary coincides with the publication of the Scottish Parliament Justice Committee’s report earlier this year into its post-legislative scrutiny of the Act. In compiling the report, the committee took evidence from academics, legal practitioners and representatives of different groups with an interest in family law as part of its post-legislative analysis of the Act as a whole.
It noted that the timescales for bringing a s 28 claim are a challenge, and that it may be helpful for the courts to have the power to transfer property, other than money, from one cohabitee to another in the interests of a fair outcome. The evidence before the committee was that the concept of fairness and how best that subjective notion is to be interpreted remains a challenge.
Each case will inevitably turn on its own facts and circumstances. Some favour clearer and more prescriptive legislation. However, Baroness Hale observed in Gow that the case “illustrates that it may be unwise to be too prescriptive about the order which the court should make”. This view is supported by evidence to the Justice Committee by Kirsty Malcolm, advocate, who expressed scepticism about the merit in making s 28 more prescriptive, calling instead for an increase in the publication of s 28 decisions.
It is perhaps not surprising that there has been a steady increase in reported cases in the wake of Gow. However, more would be helpful. One would hope that over the next five to 10 years, the body of useful case law will increase so that there is greater certainty about the likely outcomes in such cases.
A recent case that is worth mentioning is W v M 2016 SLT (Sh Ct) 14. The defender had appealed against a decision at first instance awarding a capital sum of £46,214 to the pursuer on a number of points, including that the sheriff erred in taking into account payments made by the pursuer to the defender outwith the period of cohabitation. Sheriff Principal Murray dismissed the appeal and held that the terms of s 28 did not exclude such payments being taken into account, and it was appropriate that discretion should rest with the court in determining economic advantage and disadvantage and the relevance of payments or transactions towards that.
Looking forward, the Justice Committee’s report has raised a number of issues that will hopefully be taken up by the Government in the future to improve the efficacy of the 2006 Act generally. Whatever the failings in the drafting of s 28, however, there is little doubt we are fortunate to have an Act addressing the legal consequences of cohabitation in Scotland. Many of our colleagues in England are agitating for reform in this area and are looking to Scotland as an example of what can be done.
Karen Wylie, associate, Morton Fraser LLP