Scotland first in the UK to rule on cohabitation

Tuesday, July 03, 2012

Gow v Grant: Failed relationships and financial liability 

The UK Supreme Court has this morning issued a ruling in the case of Gow v Grant, which clarifies in what circumstances financial claims can be made under the Family Law (Scotland) Act 2006 which provides for cohabitants making claims against their former partners in certain circumstances.
 
As ever, the law is somewhat behind the curve as more and more people are choosing to live together out of wedlock, but the 2006 Act is at least an attempt to move with the times. Scotland is the only part of the UK to have these specific provisions, and as Lady Hale quotes in her judgment: “The Act has undoubtedly achieved a lot for Scottish cohabitants and their children.” She goes on to say that “English and Welsh cohabitants and their children deserve no less”.  

The judgment today from the Supreme Court in the case of Gow v Grant is welcome guidance in this area of new law, given the somewhat contradictory approaches adopted by the lower courts to date. It is fair to say that the legislation has not been the easiest to interpret and as new law the court’s interpretation will of course continue to evolve.
 
 Cohabitation expert, Gillian Crandles, comments: "After the references to “precise wording” and the objective of the relevant section being described as “limited in scope” in the earlier appeal judgment from the Inner House of the Court of Session, we are now back to a broader approach based on an “overriding principle... of fairness”, comparing “where the parties were at the beginning of their cohabitation and where they were at the end”. The judgment also states that reference could be made to the prevailing legislation regarding financial provision on divorce, which perhaps goes further than many might have expected.
 
“Although all family law cases are fact specific to some extent, the judgment may have far reaching implications for all cohabiting couples should their relationship come to an end.
 
“Through this judgement, it is becoming clearer that the consequences of ending a relationship may go way beyond emotional turmoil. Many of the growing number of cohabiting couples won’t be aware of this, which is why a public information campaign now needs to be put in place to educate people.
 
“Couples who don’t want to fall into this type of legal battle in the event of separation ought to put in place a pre-cohabitation agreement, opting out of this regime given its potentially far reaching consequences. Comments from the Supreme Court point towards the fact that a remedy is now required South of the Border, so it may not be long before legislation is introduced there too.”