Fairness still the test where both cohabitees wealthy

In M v S [2017] CSOH 151 (12 December 2017) the pursuer sought, and was awarded, an order for a capital sum payment of £912,000 by the defender following cessation of cohabitation.

The pursuer pitched the claim under two clear heads in terms of s 28 of the Family Law (Scotland) Act 2006. The first was an increase in the net value of a farmhouse less the capital contributions made by the defender, which had been the parties’ home for the majority of the relationship. The second derived from her loss of income resulting from a reduction in working hours in the interests of the parties’ children.

The pursuer, a solicitor, did not seek to recover any loss arising out of not becoming an equity partner, limiting her claim to partnerships held during the course of the relationship and between full and part time work. The defender contended that no award was due.

Lord Ericht noted that even after the award, the defender’s increase in the value of his assets over the course of the cohabitation would still dwarf the pursuer’s, and emphasised that in terms of the test set out in Gow v Grant 2013 SC (UKSC) 1, the exercise was to achieve fairness between the parties.