Cohabitation

Question 1

Before the family law Scotland Act 2006

Answer 1

Cohabitants has no duty to ailment each other

Cohabitants has no right to succession

Cohabitants had no financial provision on separation

Question 2

S29 2006 Act

Answer 2

Allows applications to court on intestate succession with 3 conditions

• the deceased must have died intestate
• the deceased must have been domiciled in Scotland
• immediately before death they must have been cohabitating

Question 3

S28 2006 Act

Answer 3

Deals with financial provisions where a cohabitant otherwise than by death - must be claimed within a year

Question 4

S28(2)

Answer 4

Orders for a capital sum or economic burden of caring after cohabitation

Question 5

M v S

Answer 5

Heaving criticises the S.28 decision as lord Matthews failed to follow the 3 stage approach and he adopted an equal sharing 50/50 approach when nothing in the 2006 Act says to do so

Question 6

Gow v Grant

Answer 6

Fairness is the overriding principle, the couple moved in together and she dropped everything including the flat etc, she paid for housekeeping and time share. Awarded £39,500 using the balancing principle taking into account previous flat

Question 7

S28 main points

Answer 7

1- fairness
2- it needs to be a broad approach
3- fairness does not always mean equal shading
4- it needs to be in the interests of the defender
5- discretion

Question 8

What gow v grant did not do

Answer 8

Failed to outline what is meant by fairness and had no sufficient guidance on how a capital sum should be quantified

Question 9

Whingham v Owen

Answer 9

Followed on from Gow v Grant
They were together for 26 years, they had no assets at the beginning but big assets by the end, she said she had contributed to this and as such should be given £400,000 however courts said this was too high but she ended up on benefits so was granted £250,000 - look at beginning and end- no precise mathematics occur

Question 10

Smith v Milne

Answer 10

Further S28(2)(a) case- said that although a narrow approach should be targeted there needed to be evidence of advantage or disadvantage

Question 11

S28(2)(b)

Answer 11

Provide economic support for burden of caring after the cohabitation ends, Cohabs both need to be child’s parent- the problems here were that the larger economic impact was not looked at, eg. Can they earn? And low awards were given, there was a lack of guidance

Question 12

S28(3)

Answer 12

Lindsay v Murphy