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February 6, 2019 By Lesley Gordon

Changed days for cohabiting families

The number of cohabiting families in the UK has almost doubled in the last twenty years. This may be explained by an increasing trend to cohabit rather than marry or cohabit for a period before marrying. Scotland led the way within the UK by introducing certain legal protections for cohabitants in 2006. This legislation was designed to protect cohabitants from unfair situations arising both in the event of separation or death.

cohabitation-cupsSince 2006, cohabitants have had the ability to seek financial compensation at the end of their relationship. A claim upon separation is broadly based on one party demonstrating economic disadvantage as a result of the relationship, including contributions in the interests of a child and the other party having a corresponding advantage, or vice versa.

Broad fairness between the parties

However, the legislation allows the courts a high degree of discretion when assessing claims and consequently, many commentators in Scotland and beyond have watched with interest as a variety of cases have been considered by the courts. The Supreme Court decision in Gow v Grant [2012] UKSC 29 is the leading authority on cohabitation claims and provided important clarification on the interpretation of the 2006 Act. In particular, it focussed consideration on where parties were at the start of the relationship, compared to their respective circumstances at the end. A detailed arithmetical assessment of who spent what and when during the relationship should not be undertaken. The overarching message from Gow v Grant is that the purpose of the legislation is to achieve broad fairness between the parties.

A fair and appropriate way to quantify her claim

The more recent case of M v S [2017] CSOH 151 showed, if there had ever been any doubt, that the courts were willing to grant large capital settlements to cohabitants. This was a case where a capital sum in excess of £900,000 was awarded. Both parties had progressed their careers and business interests during their relationship. They also incurred joint expenses for living and childcare costs. What was interesting about this case was that the Pursuer did not ask for an award based on the financial position overall, but rather restricted to two specific disadvantages. The first was in relation to contributions made to a farm. The Pursuer in the case made payments of £600 per month into the parties’ joint bank account as a contribution towards the mortgage. Initially, £600 was half of the monthly mortgage. When the mortgage rate reduced the Pursuer continued to pay £600 per month. Ultimately, her £600 per month contribution ended up being double the monthly mortgage payment. The Pursuer sought half of the increase in value of the farm during the period of cohabitation, after deduction for certain renovations carried out by the Defender. The court agreed that was a fair and appropriate way to quantify her claim.

Secondly, the Pursuer sought redress for the economic disadvantage she had suffered in the interests of the parties’ two children. She had reduced her working hours and her claim was in respect of the difference of working full time and part time. Again, she sought one half of the income loss thereby recognising that it should be shared between her and the Defender. The court again agreed that it was a fair and appropriate way to quantify her claim.

We recently acted in a complex cohabitation claim in the Court of Session which resulted in the highest capital sum to date in a cohabitation case in Scotland. A payment in excess of £2million was granted. Our case was similar to M v S as it was based on very specific advantages and disadvantages. Our position was that the Defender had benefitted to the extent of one half of the value of two properties purchased in joint names, but paid for entirely using the Pursuer’s pre relationship assets. In addition, that the Defender had benefitted as a consequence of receiving sums from the sale of the Pursuer’s business. A complicated structure had been put in place which saw the Defender becoming involved in the business to facilitate a tax efficient sale. The capital sum repaid corrected the resulting unfairness.

A move away from a “broad brush” approach

It is encouraging that we are seeing a move away from a “broad brush” approach, as greater certainty in cohabitation cases can only be a good thing for the many cohabiting families in Scotland today. However, the arguments in such cases will undoubtedly continue to be nuanced and require careful consideration.

The Scottish Law Commission will soon be looking again at the legislation governing claims by cohabitants and we may see some aspects of the regime modernised. There is a suggestion that the Family Law (Scotland) Act 1985, which provides a regime for financial provision following the breakdown of a marriage or civil partnership, may provide a useful model for considering a new scheme for financial provision on the breakdown of cohabitation. That would certainly provide greater certainty over the current cohabitation regime and we await such developments with interest.

More to Read

cohabitation-lgSome Cohabitation Myths Dispelled cohabitation-consultationScottish Law Commission seeks views on cohabitation law in Scotland cohabitation-lgCohabitation Claims on Death The Legal Consequences of Living Together as a CoupleThe Legal Consequences of Living Together as a Couple

Filed Under: Cohabitation Tagged With: cohabit, Cohabitation, financial compensation

Lesley Gordon

Lesley is a Partner at BTO Solicitors LLP. Accredited as a Specialist in Family Law by the Law Society of Scotland, Experienced Collaborative Practitioner, and Accredited Family Law Arbitrator. Read Lesley's professional biography

What our clients say

I certainly feel like a weight has been lifted off my shoulders

Marjory, I just wanted to say thanks very much for your help right throughout the case. Lately, the ad hoc support has been invaluable and given me the confidence to keep representing myself and not feel pushed into agreeing something I’m not comfortable with. I appreciate how difficult it must be to provide support when… Read more “I certainly feel like a weight has been lifted off my shoulders”

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I have come out of the process a much stronger person

I would have no hesitation recommending Lesley Gordon to anyone I know who needs the services of a divorce lawyer. It was a very positive experience all things considered and I have come out of the process a much stronger person thanks to Lesley.

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Highly professional and meticulous in detail

Highly professional and meticulous in detail. No shortcuts or compromises involved, ensuring all eventualities were covered and underwritten with third-party expertise where appropriate.

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Efficient and smooth service

Debbie, could I take this opportunity to thank you for the efficient and smooth service you have provided, and particularly, in our first meeting when you listened to my concerns and really helped explain things and put my mind at ease.

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Forever I will be grateful…

Marjory, forever I will be grateful and thankful to you for all the hard work you did for me and my family. Thank you very much again and again. I am so very blessed in life that I found a lovely understanding person like you. Not many lawyers would say go and have a cup… Read more “Forever I will be grateful…”

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I am eternally grateful

I am in no doubt I have made the correct choice by having BTO Solicitors represent me in such a difficult time. I am under no illusion you and your team will continue to do the best for me in future. Many many thanks for today. I am eternally grateful.

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Help during this extremely difficult time

Debbie, I would just like to thank you for your help during this extremely difficult time. I really appreciate it.

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Wonderful job

I would like to thank you Lesley again for the wonderful job you and your team did for me at a very difficult time in my life.

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Thanks for all the expert guidance through a trying situation

Hi Marjory, my daughter and her son are doing great. Everything seems to have calmed down. She and her husband finished the mediation process after a couple of visits as they both felt they had to step up to the mark for their son’s sake not for personal reasons. Once again thanks for all the… Read more “Thanks for all the expert guidance through a trying situation”

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I was very pleased with how things went today

Hi Beverley – I would just like to email you to thank you for your services today and commend you on doing a stellar job. I was very pleased with how things went today. The level of professionalism you showed was much to my satisfaction and greatly appreciated. I felt very relaxed at having you… Read more “I was very pleased with how things went today”

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I left the offices empowered and liberated

Just wanted to say huge thank you to Lesley Gordon. I left the offices empowered and liberated. Not sure any psychologist would have done a better job! On top of her real job.

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Approachable and sensitive manner

Marjory, thank you very much for your very approachable and sensitive manner during our meetings.

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You have smoothed the pathway with your efficiency

Amanda…May I take this opportunity to thank you for your help in these matters. Although I am a resilient person, it has not been easy, but you have smoothed the pathway with your efficiency…

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I would recommend you to anyone

Hi Marjory and Keira, I just want to thank you both for taking me through this terrible time in my life. I have learned a lot in the past 3 years with dealing with BTO and I would recommend you to anyone as you have been very fair and honest with all parties concerned.

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I would like to thank my exceptional Scottish team

My dear legal team! I have been writing this letter of thanks in my head since about two months ago, and didn’t know it would take a bit longer than expected to actually be able to express my deep gratitude to you ALL for winning this tough and enduring process for me……I would like to… Read more “I would like to thank my exceptional Scottish team”

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Outstanding job…

Marjory… you are doing an outstanding job… Thanks again for your support and expertise in helping me navigate through this horrible situation. I really appreciate it.

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Great service

Beverley thank you so much for all your hard work and making things run as smoothly as possible. Great service.

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All starting to come together…

Thanks Marjory, it’s all starting to come together.. thanks to you…:)

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Thank you for your professionalism and talent

Thanks Debbie, as always, for your professionalism and talent, it has been a pleasure.

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Very approachable manner

Many thanks Marjory for your very approachable manner during our meetings.

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Financial knowledge and gravitas

Lesley has financial knowledge and gravitas. I think she is faultless.

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Help guiding us through a very stressful time

I would like to thank you again for all your work and help guiding us through a very stressful time.

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Things have been finalised in about twelve weeks

Amanda, many thanks for seeing all this through for me. I cannot believe that after the best part of two and a half years of frustration (pre BTO), things have been finalised in about twelve weeks.

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After all these years I’m finally free

Thank you so so much Amanda. Actually there’s no words to thank you. I feel great. After all these years I’m finally free. Thank you.

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I won’t hesitate to put them in touch with you

Looking back I wish my ex-wife and I would have gone down the collaborative divorce path but as you know she chose a very different way which ended up being most certainly a longer, more stressful and more expensive path for both of us. Should I ever hear of anyone whose marriage has reached that… Read more “I won’t hesitate to put them in touch with you”

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I came out of your offices feeling great!

Marjory, thank you for a really positive meeting on Friday. I feel things are a lot clearer in my head – I came out of your offices feeling great!

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An Excellent Lawyer…

Beverley thanks for all your assistance with everything. It’s much appreciated and rest assured should I ever need an excellent lawyer in the future you will be the first to be called.

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I still get to see my kids 3 times a week

Just wanted to say a huge thank you for your help and representation today. It’s such a relief to hear that I still get to see my kids 3 times a week. Also last but by no means least can you pass on my profound gratitude to Counsel who was a star !!!!

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My recent collaborative process

Dear Marjory, I just wanted to say a huge thanks for all your help, advice and counsel throughout my recent collaborative process. You definitely made a difficult process easier for me. Thank you.

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I will definitely recommend you…

Hi Marjory, thanks again for being an absolute joy to work with during this unknown and nerve-wracking process. You made me feel calm and reassured throughout (not an easy task). I will definitely recommend you to anyone else looking for representation.

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Your advice has been incredibly helpful

Beverley thank you for everything you’ve done regarding my case and for your assistance in getting the many issues resolved and matters concluded. Your advice has been incredibly helpful and greatly appreciated. Should I require any further assistance, I will be in touch.

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Highly professional and excellent services

Debbie, I would like to express my sincere gratitude for the highly professional and excellent services I received from yourself and your team.

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Risk assessed everything

They explained everything to me very clearly and we looked at every permutation and possible outcome and risk assessed everything.

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We would not have managed this without you

Marjory, I think we can all honestly say that we would not have managed this without you, truly you have been an absolute star and we are all very thankful.

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From our first meeting, I felt confident…

Hi Debbie, I wanted to take this opportunity to pass on my gratitude to you for getting me through this. From our first meeting, I felt confident and assured to be in your safe hands and that never changed during the last 18 months. Whilst it is a great relief to have this finished I… Read more “From our first meeting, I felt confident…”

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Guiding me through a difficult time

Lesley, I would like to take this opportunity to thank you for your professionalism. Guiding me through a difficult time, also your understanding and empathy as to my personal situation. I would not hesitate in recommending your services to others.

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Our anxieties were greatly alleviated

Lesley, thank you so much for all your help. It turned out to be a very uncomplicated matter in the end and probably not the most interesting for you. However our anxieties were greatly alleviated with your advice and work

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Splendid work Marjory

Splendid work Marjory, it has been a treat to use BTO and your services.

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Their service and support has been excellent

After quite a complex case, I can say that their service and support has been excellent.

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Always appreciated being able to rely fully on you and the team

Amanda and Lesley, thank you to you both for all your help, now and during last year, and, as I said before, I have always appreciated being able to rely fully on you and the team at all times. Obviously, a very sad time for me but I am relieved that it is at an… Read more “Always appreciated being able to rely fully on you and the team”

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Excellent communications and support

Many thanks for your recent work related to my divorce…..I would particularly like to thank Amanda Richardson for her excellent communications and support.

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Such a lovely welcoming manner

Beverley, just wanted to say thanks so much for your fertility law training session provided for the group last night! It was super helpful and everyone really appreciated it. You have such a lovely welcoming manner which I think really helped people feel comfortable to ask questions.

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