13-month cohabitation enough for financial claim, court rules
A short-lived cohabitation may be capable of supporting a claim for financial provision when it ends, depending on the circumstances, a sheriff has ruled.
Sheriff Peter Hammond at Livingston Sheriff Court decided that a 13-month cohabitation between Lorna Harley and Mark Thompson qualified to be regarded as a relationship of cohabitation for the purposes of section 25 of the Family Law (Scotland) Act 2006.
The sheriff noted that when the legislation was being considered, the Scottish ministers had decided that there would be more to be lost than gained by setting an arbitrary qualifying time period. The question was therefore to be answered by looking at the circumstances of the relationship as a whole, duration being a factor to be considered.
Here the parties, who both had children by previous relationships, intended to live together as a family; they bought a family house together; they both worked and pooled their earnings towards joint living expenditure; and In large measure, their day-to-day financial affairs were merged and run together. "Those arrangements worked well enough for over a year", the sheriff said. "For these reasons I am unable to dismiss their relationship as one of short-term cohabitation undeserving of protection under the legislation."
However he held that Ms Harley had adopted the wrong approach in presenting her claim as "essentially an accounting one", based on what would be needed to restore her to the position she would have been in had she not allowed the defender to benefit from her higher resources and earnings. "I agree with the defender that the legislation is not intended to facilitate a minute unpicking of the parties’ expenditure during the course of the relationship", he said. "In a relationship where cohabitants are pooling their resources, it not legitimate to use section 28 [of the Act] to have one party refund at the end of the relationship the living expenses he could not afford to contribute to during it."
He added: "I agree with the defender that it would make no sense to require one party who had less money to make a compensatory payment to the other at the end of the relationship. I would go further, and suggest that to do so would be inconsistent with the purpose of section 28 and do an injustice in many cases."
The sheriff upheld the claim to the extent of those elements which had resulted in "clear and measurable economic advantage/disadvantage and which justify the court stepping in to correct an obvious imbalance in the interests of fairness". These were the pursuer’s funding of the house purchase (£13,785); repayment of a loan to the defender’s parents; half of the cancellation costs of a holiday booked before the separation; and a payment to the defender to clear his pre-existing debts, giving a total of £19,868 of the £53,428 claimed by the pursuer.