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Should you forum shop if you are cohabiting?

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How many times have you heard the term “Common Law Marriage.”  Mr Average seems to think that certain rights attach to this terminology but the reality is the term means nothing. If the parties are formally married they are protected by legislation and case law but the situation is very different for those who do not make that commitment.

In England in the case of a dispute between an unmarried couple who do not own a property together but where one party only has the legal title, the law is complex and uncertain.  The Courts have to determine whether there has been a contribution by one party or whether there has been an agreement as to ownership. In many case parties may have been together but cannot succeed in proving their case which is often very inequitable.

The situation in Scotland is very different. In Scotland there is legislation which allows a cohabitant to apply to the court for financial provision however the relationship ends whether by death or otherwise. The legislation is based on the concept that provision can be made to a party who has suffered economic disadvantage as a result of the relationship.

The recent Scottish case of Gow v Grant came before the Supreme Court. In this case the parties met in 2001 when they were 64 and 58. They moved in together in 2002 and lived together as an engaged couple until 2008. When they moved in together Mr Grant had persuaded Mrs Gow to sell her property and part of the proceeds were used for the couples living expenses. The lower court found that Mrs Gow had suffered an economic disadvantage and ought to be compensated. Mr Grant appealed and the award was set aside. Mrs Gow then appealed to the Supreme Court who affirmed the decision of the lower court and agreed that Mrs Gow had suffered economic loss.

Traditionally, it has been against public policy to encourage cohabitation but this solution does not give rights but merely redresses balance which has flowed from the end of the relationship. It almost puts a commercial element into the situation by compensating for economic loss.

There have been many calls for a change in the law in this country; various solutions have been suggested that couples should get rights who have lived together for more than five years or some have suggested automatic rights on break up. However, the Scottish solution seems to be a very fair one where people are literally compensated for loss so maybe we need to look no further than north of the border for the solution.

By family law solicitor, Gillian Davies