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The weekend just past was very Scottish-focused due to the incredible efforts of Andy Murray (didn’t he do well?). Despite the fact that Andy was the runner up while the English have a champion in Jonny Marray, there are some things that the Scots do better than us. In terms of oil production, whisky and imaginary lake-dwelling monsters, they are streets ahead. Although currently remaining part of the UK for political purposes, did you know that Scotland is a separate legal jurisdiction? It may come as a further surprise that they are also ahead of us in legal terms, in some respect: the law relating to cohabitation outside marriage being one of those instances.

The current situation for cohabitants in England and Wales is that there is no coherent body of law that applies to people when a living-together relationship breaks down and the couple have not been married or in a civil partnership. If the couple co-owns a property, or if one is claiming an interest in a property owned by the other, it is possible to make an application to the court for a determination of who owns what, or an order that the property should be sold. If the couple have a child together, there is scope for the court to give the party who usually looks after the child a sum of money from the other parent for temporary investment in a house to live in while the child is in full-time education, and other payments for expenses; child maintenance is dealt with by the Child Maintenance and Enforcement Commission if the parents cannot agree. There is currently no scope for discretionary payments to be made to compensate for financial disadvantages suffered as a result of the relationship, or an inappropriate financial advantage retained, and no scope for any payment of maintenance from one party to the other to enable a period of readjustment after the relationship breaks down, no matter how long the couple was together.

Successive governments have long considered the situation to be far from ideal, especially as 40% of children are now born to parents who are not married. The matter was first referred to the Law Commission for examination in the mid-1990s, but the political nature of the project was responsible for repeated delays and false-starts. It was re-referred in 2005 and a Report was produced with recommendations for reform in 2007. The government at first said it wished to wait for implementation until it had seen the impact of the Scottish reforms, which were along the same lines; recently it has made it clear it will not be taking forward the proposals in this parliamentary term.

By contrast, on 4 May 2006 the Family Law (Scotland) Act 2006 came into force in Scotland giving couples who live together and separate in Scotland the ability to ask the court to order lump sum payments to compensate for financial disadvantages suffered or advantages retained after the break-up. Last week, the Supreme Court – which unlike other English courts also deals with Scottish law matters – heard the case of Gow v Grant in which the operation of the Scottish cohabitation regime was examined at the highest level for the first time.

Mrs Gow met Mr Grant in 2001, when she was about 64 years old and he was about 58. They commenced a relationship, and in about December 2002 Mr Grant asked Mrs Gow to move in with him at his home in Penicuik. Mrs Gow agreed to do so if they became engaged, which they then did. They lived together as a couple until January 2008, when their relationship ended. When the parties met, Mrs Gow also owned a flat in Edinburgh. After the couple moved in together, Mr Grant strongly encouraged Mrs Gow to sell her property, which she did in June 2003. There was no evidence that Mrs Gow was forced to sell the flat because she was in financial difficulties; rather, she had sold the property in the interests of furthering her relationship with Mr Grant. Mrs Gow continued to live in Mr Grant’s home until she obtained rented accommodation in June 2009. The value in July 2009 of Mrs Grant’s former flat was £88,000, £38,000 more than when it was sold in June 2003.

The court found that the objective of the new law was to enable a “rough and ready” measure of compensation to be awarded, rather than requiring a detailed and comprehensive analysis of the financial transactions that occurred during the relationship. The guiding principle of the law is fairness. The sale of Mrs Gow’s house could therefore be taken into account – part of the proceeds were used by Mrs Gow to meet the parties’ joint living expenses, it was encouraged by Mr Grant and was done to further the parties’ relationship. The loss of the benefit of the increase in value was an economic disadvantage, and that it was suffered by Mrs Gow in the interests of her relationship with Mr Grant. When the cohabitation ended Mrs Gow did not have a home whereas Mr Grant had a home which had increased in value; the court agreed with the judge who first heard the case that Mrs Gow should be compensated for that disadvantage under the new cohabitation provisions.

Interestingly, three members of the Supreme Court supported a call for reform in England made by Lady Hale in a supplementary judgement: Lord Wilson, who like Lady Hale has a strong family law background, and Lord Carnwath, who was Chair of the Law Commission during the initial examination of the legal context of cohabitation in the late 1990s. They considerthat the main lesson from this case, as also from the research carried out in Scotland and England over the years, is that a cohabitation regime such as the Scottish one and the one proposed by the Law Commission for England is both practicable and fair, focusing on where parties were at the beginning of the relationship and where they are at the end. It does not impose upon unmarried couples the responsibilities of marriage but redresses the gains and losses flowing from their relationship.

These three justices – two of them perhaps the country’s foremost experts on practical family law -consider that there are real lessons to be learned in England from the Scottish experience; and we at CFLP couldn’t agree more. We feel that a similar scheme to the Scottish one in our jurisdiction would go some way towards redressing the huge injustices that can occur when living-together relationships break down, where the victims are often vulnerable children. What do you think?


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