Lack Of Clarity Clouds Understanding Of Cohabitation Rights

Scottish Ruling Puts Spotlight Back On Living Together Outside Of Marriage Or Civil Partnership

09.07.2012

A landmark ruling in Scotland which means cohabitees can make financial claims against former partners has highlighted the lack of clarity which exists over rights both north and south of the border, according to a family law specialist at Irwin Mitchell.

The case of Gow v Grant related to a couple who lived together for five years between 2003 and 2008, where the woman was encouraged to both sell her own home and stop working.

However, following the end of the relationship, she was forced to move into rented accommodation and launched legal action in relation to gaining back funds related to the profit that was lost on her home and contributions she made towards living expenses.

By ruling in her favour, the Supreme Court has clarified the meaning of section 28 of the Family Law (Scotland) Act 2006 and means that cohabitants in the country are now able to apply for financial provisions when they have suffered economic advantage in the event of their relationship with a partner coming to an end.

According to John Nicholson, a family law specialist at Irwin Mitchell, the ruling is a stark contrast to how similar cohabitation issues are dealt with by courts in England and Wales.

He explained: “We have a very uncertain situation facing unmarried couples in England and Wales, but the Scottish solution – of enabling parties to unmarried relationship to make a claim for economic disadvantage – is something that would provide much fairer results.

“The Supreme Court has decided to interpret the Scottish law governing cohabitees’ rights using the same broad brush of ‘fairness’ that the English Courts have traditionally brought to bear on financial applications in this jurisdiction, and certainly implies that judges should be looking to decisions in divorce cases for guidance when determining cohabitation claims.

“However, whether those who chose to live together without the ties of either marriage or civil partnership reside in Scotland or England and Wales, there is the vital need to ensure that people understand the legal consequences of their arrangements. With cohabitation on the increase, proper education about civil rights both north and south of the border is more important than ever.

John added: “We are told that in Scotland many cohabiting couples have no knowledge of their rights. As there is no formal end to the practice of two people living together, many of them will not find out until it is far too late.

“In England and Wales it is equally often the case that cohabitees have a completely erroneous belief that they do have rights akin to those arising from marriage, after some random period of cohabitation – seven years is a popular myth.

“There is little point in passing laws if there is no proper, comprehensible and widely available publication of their extent. Similarly, if a population is largely mistaken about its legal rights in certain circumstances, steps should be taken to ensure that it knows the facts.”