Cohabitants And FPO Flashcards
The Family law (S) Act 2006
Changed the law relating to cohabitants rights dramatically with regards to
Rights under succession
Rights for financial provision where cohabitation ends
S28 - claims for financial provision
Essentials
Must make claim within year
Must satisfy s25 def of cohab
S25 - def of cohabitants
Must be living together as man and wife/CP’s
Court will have regard to
- length of cohab
- nature of relationship
- nature and extent of any financial relations
S28(3) - 3 possible orders
Payment of capital sim
Order for sum in respect of any economic burden of caring after end of cohab for a child of whom Cohabs are parents
Any interim order the court sees fit
3 stage process before granting order
- Procedural
Determine cohabs, action raised urging a year
- Economic imbalance? 28(3)
Had D derived any economic benefits from contributions made by P?
Has P suffered any economic disadvantage in interests of P or relevant child?
- balancing exercise
Have any economic advantages been offset by disadvantages suffered by either party?
S28(9)
Contributions can be?
Economic advantage?
Indirect and non financial
Eg looking after relevant child or home
Economic advantage includes gains in capital, income and earning capacity
M v S
Lords Matthews wrongfully applied stone equal sharing approach
Awarded P half of economic cost of childcare maintenance
Approach only to be taken with divorce/dissolution
Highlighted issues with applying s28, highly criticised
Gow
V
Grant
Clarified application of s28
One cohabitee contributed more to living costs and lifestyle than the other,
Sold house and gave up job due to his encouragement and in he interest of furthering their relationship
Left with no home or income. Applied for payment of capital sum.
No evidence of disadvantages offset but advantages. Awarded £39500, net value of disadvantages suffered
Gow
V
Grant
5 key principles
Fairness is overriding principle
- courts should have regard to position of parties prior and post cohabitation, outcome fair?
S28 should not be approached narrowly, all circumstances should be taken into account
Fairness does not mean equal sharing
When judging whether P has suffered disadvantages in the interest of P, it is the effect rather than the intention that matters
Courts have wide discretion. Do not need to make order