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Cohabitation law: a lesson from Scotland

Following the handing down of the Supreme Court judgment in a Scottish cohabitation case, Gow v Grant [2012] UKSC 29, Lady Hale has stated that lessons can be learnt in England and Wales from the practicability and fairness of Scottish cohabitation law.

Section 28 of the Family Law (Scotland) Act 2006 enables a cohabitant to apply to start financial proceedings when cohabitation ends, and the court can order one person to pay a capital lump sum to the other.

The court will look at whether one party is put at an economic advantage from the contributions made by the other, and whether the contributor should be compensated for the disadvantageous position they find themselves in.

Ms Gow and Mr Grant met in 2001. She was aged 64, he 58. The parties began cohabiting in 2002, but separated in 2008. When she moved in, upon Mr Grant’s encouragement, Ms Gow sold her flat in Edinburgh.

The court at first instance found that, whereas Mr Grant had benefited from an increase in the value of his property, Ms Gow had suffered economic disadvantage having sold her flat, and that she should be compensated with £39,500, being the difference in the value of her flat at the time of sale and the time of the hearing.

Although the award was initially set aside by the appeal court, it was later affirmed by the Supreme Court.

Lady Hale made it clear that the Scottish remedies should be made available south of the border.

David Woodward, partner and head of Private Business at TLT and national secretary of Resolution, comments; “The government said it would consider the experience of cohabitation law in Scotland before deciding whether to legislate in England. Now we have had the Scottish experience there is no reason to deny those south of the border the protection given to cohabitants in Scotland. Sadly, the indications are that the government has no enthusiasm for such legislation which will be left firmly in the long grass”.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at August 2012. Specific advice should be sought for specific cases; we cannot be held responsible for any action (or decision not to take action) made in reliance upon the content of this publication.

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