Mon 10 May 2021

Top five tips for English family lawyers about Scots cohabitation law

Having recently taken part in a debate organised by Resolution about Anglo-Scottish cohabitation law, I thought it would be helpful to set out some top tips for English lawyers about Scots law on this topic. 

If you'd like to consider these issues in more detail (and listen to some impassioned legal debate!), I'd recommend listening to the whole webinar (available for Resolution members on the Resolution website) and also the follow up Resolution podcast (available to anyone here or in Spotify or any good podcast provider). 

"You mean you have cohabitation law?!"

The starting point is that yes, unlike England and Wales, there is specific legislation for financial provision on separation of a cohabiting relationship in Scotland.  This has been in place for some 15 years now, since the Family Law (Scotland) Act 2006.  The Scottish Law Commission is currently undertaking a review of various aspects of Scots law in relation to cohabitation.

"What is the law?"

Section 28 of the 2006 Act provides for financial provision on the breakdown of a cohabiting relationship.  The definition of "cohabitant" is a member of a couple "living together as if husband and wife" or as if civil partners.  The Court is also directed to have regard to three factors in considering the definition, being the length of period the couple have lived together, the nature of the relationship and the nature and extent of financial arrangements between them. 

Provided the couple fall within the definition, the test to be applied by the Court in relation to financial provision is basically whether there is a need for compensation for net economic disadvantage suffered by the applicant in the interest of the other party or the children, or compensation in relation to net economic advantage derived from contributions made by the applicant.  This is my paraphrase of the test rather than the exact statutory provisions, which is somewhat confusingly worded, and quite lengthy. 

The orders which can be sought from the Court consist only of a capital sum.  There is not provision within the Act for any form of property transfer, as well as no provision for maintenance between cohabitants or for any pension sharing.

"Do the provisions work well?"

In my view there are a couple of quite obvious deficiencies with the Act, which should be remedied.  The first is the time limit within which a cohabitant must make a claim.  This is one year from the date of separation to the claim being with the Court and served.  That timeframe is very short, particularly where the cohabitant will be dealing with the emotional fallout of the relationship breakdown, or perhaps where there might be genuinely different perceptions of when a relationship is actually over.  The second is the limited remedies available to the Court.  Given the main asset of a dispute between cohabitants is the property, I consider that remedies should be extended to allow property transfer orders to be made. 

The much more difficult issue, and one which the Scottish Law Commission is currently grappling with, is what principle should behind the legislation, and whether and how that should be articulated within the Act.  At the moment, the principle behind the Act could be said to be loosely based on compensation.  Is that the correct principle to be in place?  If so, rather than the very wide discretionary "fairness" test which was set out in the only Scottish Supreme Court case dealing with cohabitation (Gow v Grant) should the compensation based test be much more clearly set out? 

"How does all of this interact with Schedule 1 cases and Scottish property law?"

This is where, again, Scots law is very different to English law.  Firstly, Scots property law has an entirely different historical and legal footing to that in England.  In Scotland, the owners to a property are the person or people who are set out in the title documentation, and ownership is set out in shares per the title documentation.  There is no concept within Scots property law of a beneficial or constructive trust, which would give property or ownership rights to someone not mentioned on the title deed.  There is therefore no equivalent in Scotland of the Trust of Land & Appointment of Trustees Act, which (in the absence of specific statutory provision) is the route often used by English cohabitants to try to claim property rights. 

Secondly, there is no equivalent in Scotland of Schedule 1 of the Children Act.  In Scotland, parents can claim child maintenance in respect of children, but there is no ability to claim use of a property, or any capitalised sum, whether by loan or otherwise. 

What we do still have in Scotland is an old remedy stemming all the way back to Roman law, called "unjustified enrichment" which prior to 2006 was used as a route for cohabitants to make a claim.  The case of Pert v McCaffray [2020] CSIH5 clarified unjustified enrichment is still available as a potential alternative route for cohabitants to make a claim, including where they may have missed the time bar for in terms of Section 28 of the 2006 Act.

"Why is this relevant to my English clients?"

One reasons why this may be very relevant to English solicitors is due to the jurisdiction rules for the 2006 Act.  The Act states that the Court which is able to hear a Scottish cohabitation claim is the Court which would have jurisdiction to hear this matter in relation to divorce, if the parties had been married to each other.  Cohabitation jurisdiction is therefore directly linked to Scottish divorce jurisdiction.  What English practitioners may not know is that Scottish divorce jurisdiction is now different to English divorce jurisdiction, the Scottish Government having taken a different route on this matter following the end of the Brexit transition period on 31 December 2020.  In Scotland, jurisdiction for both divorce and claims for financial provision on cohabitation is now (i) 12 months habitual residence in Scotland by either party; (ii) the sole domicile in Scotland of either party. 

While the time bar to make a Scottish cohabitation claim remains twelve months from the date of separation, the habitual residence ground may not be helpful if anyone is looking to move from England to Scotland in order to issue such a case.  It is clearly relevant if an English solicitor has a cohabitation client whose partner is habitually resident in Scotland. 

However, the alternative ground of sole domicile means that potentially, neither cohabiting partner actually has to be resident within Scotland in order to issue a Scottish cohabitation claim.  Instead what has to be proven is that one or other of the parties remains domiciled in Scotland.  If Scotland is the home country of one of the cohabitants, and it can be shown that they intend to return there, then there may be a strong enough connection to claim an enduring and ongoing Scottish domicile, which may allow for the option of a Scottish co-habitation claim.  This clearly needs to be explored quite quickly, given the strict time bar for any such claim, and it may be an interesting and difficult question as to whether that potential claimant would fare better under the specific Scottish cohabitation legislation, or with some combination of an English claim in terms of Schedule 1 and/or the Trust of Land Act. 

If you would wish to discuss any of the above in more detail, please don't hesitate to contact me or my colleagues in the Family Law Team.  

To find out more about the services we can provide to unmarried couples, please visit our dedicated page. 

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