10th February 2014

Supreme Court Issues Decision in Cohabitation case

Family lawyers throughout Scotland have been waiting for the Supreme Court judgement in Gow -v- Grant. It was issued yesterday and makes interesting reading.

The Supreme Court has rejected the narrow approach to cohabitation cases taken by the Inner House in their appeal decision in the same case.

The rationale behind the Family Law (Scotland) Act 2006 is to correct any imbalances created during the relationship and to achieve fairness. The terms of the legislation mean that the court has discretion to decide whether there should be any compensation paid and if the court awards compensation it is for the sheriff to assess how much that should be. In the judgement the Supreme Court points out that most couples do not keep detailed accounts of everything being spent and in a separation case the cost of making a detailed analysis of contributions made by each partner will be disproportionately high. Instead the court suggests looking at where the couple are economically at the start of the relationship and where they have ended up. It is for the sheriff to weigh up all of the relevant factors and reach a decision on what if anything should be awarded.

The decision provides clarity about how to approach claims in these cases but the emphasis on the need for the court to exercise discretion means that for any client going into court with a claim like this there is a huge degree of uncertainty. Doing fairness means different things to different people. All sorts of factors can weigh in a judge's thinking in trying to arrive at a fair result. The Supreme Court acknowledges that statistically most unmarried couples who live together have not consciously opted out of marriage. At the same time, they may not realise the possible financial consequences of the relationship ending.

It is possible to enter an agreement before moving in together or while living together to make provision for claims in terms of the 2006 Act should the relationship end. Taking such a step should be seen as sound financial planning and could save thousands of pounds in legal fees at a later date.

As the highest civil court in Scotland the decisions of the Supreme Court are binding on all lower courts in Scotland.

Jennifer Gallagher

Partner - Family Law

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