Cohabitation claim developments

20 April 2012

Following the significant cohabitation case of Gow v Grant last year, the courts have had little opportunity to clarify the provisions under section 28 of the Family Law (Scotland) Act 2006 that were designed to redress imbalances when cohabitees separate. Practitioners have argued that in reality the provision has caused ambiguity.
There have been a handful of cases. Inksters have already reported on the Selkirk v Chisholm case and now, further cases have come before the courts. In both cases, focus has been on a general economic advantage and disadvantage to the parties. Firstly, in the case of Harley v Robertson from December 2011, it was shown that whilst the defender (Mr Robertson) had benefited from an advantage given by the pursuer (Ms Harley) spending on a home that they shared but was entirely owned by the defender, she had also had benefit. She had lived there rent free and it was in her interest to live in more comfortable surroundings. There was also shown to be no economic gain made by the defender from these works. An alternative argument based on the law of Unjustified Enrichment failed, as this was only open to the pursuer if all other statutory routes to a remedy had been exhausted.
It appears that practitioners and the courts are reluctant to go down the unwieldy route of trawling through bank accounts and receipts to determine whether a pursuer has been disadvantaged by paying for small and routine outlays such as bills or food.  However, in the case of E.M. v A.I. from February 2012, a claim by a pursuer succeeded where it was shown that her contributions had been great enough that the defender would not have been able to meet the outgoings on a house were it not for her contributions. She was awarded a payment to reflect her financial contribution based on the rise in value of the property, but offset with taking into account the fact the pursuer did live in the house, and the fact the property was in the defender’s name.  In that case there was also a child of the couple and further payment was made in respect of this.
And in another recently reported case (Zelent v Savage), Julie Zelent’s section 28 claim failed where it was shown that overall she had benefitted from the relationship with her wealthy businessman partner, Inverness-based Alan Savage. She was given an income by him to replace the payments she would have received had she stayed in her high-paying IT job, and was given a car and expensive jewellery. In that particular case, it did not help the pursuer’s case that her testimony was held to be completely unreliable and ‘lacking in credibility’. She had already reduced her half a million pound claim to just under £220,000. It also transpired that she had since married in the U.S. In the end, she was awarded nothing.  
It is important to take advice if you are seeking to make a claim following cohabitation, or if you think that a former partner may be entitled to claim against you. There are important time limits that apply to the raising of an action. If you need advice on cohabitation claims in Scotland, our Gus Macaulay is an experienced family law practitioner. You can contact Gus on 0141 229 0880 or send Gus an email.

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