Marilyn Stowe writes: As previously noted on this blog, the Government’s response to calls for more rights for unmarried couples has been sluggish. The Scottish Parliament, meanwhile, has taken brisk steps to reduce the economic burden placed upon cohabitants if they separate.

I thought it would be useful and interesting to compare and contrast the Scottish system with the legal framework in the rest of the UK and so have invited Jenny Wilmot from my team and Scottish family lawyer John Fotheringham to write guest posts.

John Fotheringham WP writes: Scotland’s Statutory Cohabitation Scheme has been in force since May 2006 by virtue of Sections 25 to 29 of the Family Law Scotland Act 2006.

A Scots law defines a cohabiting couple as a couple who are living together as if they were husband and wife or registered civil partners while not actually having gone through the formal step of registration or marriage.  There are various subsidiary criteria but importantly there is no minimum period of cohabitation before the statutory label of “cohabitant” can be applied.  This is probably a good thing because of the notorious uncertainty surrounding both the beginning and end dates of a cohabitation relationship.  The Court will effectively ask the question. ‘Does it look like a marriage/CP?’ and if it does, the statutory scheme will apply and the statutory remedies will be available.  A relationship which is very short may have difficulty in convincing the Court of its statutory status.

Cohabitation can end either by separation or by death and the Scottish scheme gives separate remedies for each of these scenarios.

Cohabitation ending by separation

It is important to note the remedies available to a cohabitant on separation are very much more restricted than those available to a husband or wife on divorce.  The Family Law Scotland Act 1985 which deals with financial provision on divorce gives five bases of claim.  One of those (Section 9(1)(b) of the 1985 Act) has been more or less directly lifted from the 1985 Act and dropped into Section 28 of the 2006 Act.  Although the wording is unnecessarily complicated the effect is that the Pursuer can seek a capital sum from the Defender to reflect the economic disadvantage which the Pursuer has suffered as a result of the economic contributions which she has made and in respect of the economic advantage which the Defender has gained as a result of those economic contributions.  Plainly, economic contributions are not restricted to financial ones and the paradigm case is of the young woman who gives up her career and prospects in order to look after home and hearth, leaving her male partner to build his own career and prospects.  Remember though that the Scottish Statutory Scheme is not only gender-neutral, it is orientation neutral too.

If that claim under Section 28(2)(a) is the major one under the Scottish scheme, there is a subsidiary claim under Section 28(2)(b) in respect of the economic burden of caring after the end of cohabitation for a child of whom the cohabitants are the parents.  This is not aliment or maintenance – it will encompass such things as future childcare costs and a diminution in the Pursuer’s earning capacity.

There is no scope in the 2006 Act for the payment of any periodical allowance by either party to the other – the claims over a capital sum and nothing else.  That sum can be ordered to be paid by instalments but that of course is a different matter.

The first major case under s28 is CM v STS [2008]CSOH 125.  The authority is rather unsatisfactory because the male Defender was unrepresented and so the arguments which could have been made on his behalf were not developed.  There was some (probably unfair) criticism of the Pursuer’s case for failing to raise matters which could have been in the Defender’s favour and we are still waiting for our first really definitive case on s28. It seems clear that awards are unlikely to be very high since the Court pointed out that the similarity between the terms of s 28 and the terms of s 9(1)(b) is so great that authorities on the older Act will be highly significant.  Section 9(1)(b) is very much the poorer relation in the statutory scheme of division on divorce and it will a bold Court that decides to give free rein to arguments under s28(2)(a) merely because it stands alone in cohabitation cases.  Watch this space.

Cohabitation ending by death

If the cohabitation should end by the death of either party then the remedy can be much more akin to the remedy available to a widow or widower.  If the Statutory Scheme can be made to apply in such a case under Section 29 then the Pursuer’s claim can include the house which he/she shared with the deceased up to a value of £300,000 together with moveable property and money up to statutory limits which will depend upon whether or not there are children (of any age) of the deceased.  The Statutory Scheme under Section 29 applies only if the deceased has died intestate, domiciled in Scotland and cohabiting with the Pursuer at the time of the death.

Time Limits

Claims under ss 28 and 29 of the 2006 Act have to be made within strict time limits.  The claim on death must be served within six months after the death.  Although fairly short, the time limit should not cause too much difficulty.  The parties have to have been cohabiting at the time of the death and so the beginning of the six month period is clearly known to the bereaved cohabitant (provided her lawyer is aware of the provision).

There may be greater problems in respect of cohabitations ending otherwise than by death because of the definition of cohabitation itself.  Remember that a cohabiting couple is on in which the parties are living together as if married or CP.  The strict time limit in a separation case is 12 months from the cessation of cohabitation but we are all familiar with cases in which parties continue to live under the same roof after they stop living together as husband and wife.  The cut-off point is not, therefore, the date of separation but the date when the cohabitation stopped.  It’s quite possible to have a case in which the parties genuinely disagree when the cohabitation stopped and when the 12 month time period began.

No matter how the cohabitation ends, and what time limit applies, a claim which becomes time-barred will not diminish – it will vanish.

Why is all this important for English lawyers?

Someday this year, next year, who knows, a young woman is going to walk into your office and say ‘I’ve just left Jock’ (or Morag, as the case may be). You will have to be aware of the potential claim and of the time limit involved if your client is not to lose out on a potentially valuable claim.  And if she loses out she may seek her remedy from you, fairly or otherwise.

If in doubt, call your friendly Scots Family lawyer.  By then he may even have some more authorities to tell you about.

John M Fotheringham WS

Fyfe Ireland LLP

Edinburgh & Glasgow

0131 240 5377

jfotheringham@fyfeireland.com