The Family Law (Scotland) Act 2006 saw family law in Scotland being modernised in several ways, one of the most notable being the recognition of cohabitants rights following the termination of the relationship.

Decisions from the courts were eagerly anticipated on how the new law would be interpreted and, more specifically, on what these decisions would mean in real terms for a cohabitant seeking a financial award from their former cohabitee.

Initially decisions were few and far between and the courts appeared to show a reluctance to make substantial awards. Where awards were made the sums involved were low and were in the main for costs directly involved in the care of children. Criticism was also made of the lack of hard and fast details produced to support the financial arguments. Parties were unable to merely state that they had contributed X, Y and Z to the financial pot five years ago, they had to produce the documents to prove it.

However, a recent decision from Edinburgh Sheriff Court has shown a willingness on the part of the Courts to start taking bolder decisions. This case involved a couple in their 60's and 70's both with grown-up children from previous marriages. The female partner sought a capital award from her former partner following the breakdown of the relationship. The couple started co-habiting just over a year after meeting. She sold her property after moving in with him on the understanding they would marry. She used the proceeds of the sale of her property to pay off debts and also made a number of financial contributions to his property. The relationship ended five years later. Throughout the cohabitation she made both financial and non-financial contributions by way of running costs, contents insurance premiums, TV licence payments, food costs as well as redecoration and soft furnishings. She also kept the house well maintained.

The Sheriff awarded the female partner a capital sum payment of £39,500. In doing so the Sheriff agreed that it was not necessary to show that the female partner had suffered both an economic disadvantage and that her former partner had in turn enjoyed an economic advantage. The Sheriff looked at the intention of Parliament when drafting the legislation and concluded, having regard to the contributions of the parties, that where there is a net disadvantage or loss to the female partner that can be redressed by the order of payment of capital sum, such an order is appropriate. The Sheriff suggested that a capital sum could be akin to payment of compensation for the fact that she had sold her main asset and had not benefited from the increase in value of the property over the period of the co-habitation. A valuation of her property at the date of termination of the relationship was produced.

Unlike the previous decisions, the Sheriff acknowledged that it was impractical and unusual to expect couples to keep full and detailed account of their respective finances throughout the period of the cohabitation as neither party is anticipating the cessation of the relationship. The Sheriff allowed a 'broad brush' approach to be taken. The reliability of the evidence given by the female partner and her former partner was clearly a factor in adopting this approach.

This is hopefully the first of several meaningful judgements arising from cohabitation disputes. There is, of course, the well publicised case between the former owner of Inverness Caledonian Thistle and his former partner, the judgement in which is eagerly awaited. In the meantime there is now some comfort for cohabitees who have sold their own property to move into that of their partner. Of course, this decision may well be appealed and overturned. Watch this space...

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