Cohabitation and Succession Rights – Part 2

Assuming that there might be sufficient net intestate estate to make an action in terms of the Family Law (Scotland) Act, 2006, the surviving cohabitee does encounter further difficulties.

The fact that they are a proven cohabitee does not automatically entitle them to any award by the Court even if there is available net intestate estate. There are four factors for the Court to consider: (i) the size and nature of the net intestate estate, (ii) any benefit received by the survivor on, or in consequence of, the deceased’s death, and from somewhere other than the net intestate estate, (iii) the extent and nature of any other rights against, or claims on, the deceased’s net intestate estate and (iv) any other matter which the court considers appropriate.

The factors are wide and general which is another way of saying quite vague. Invariably, section 29 has left a particularly large amount of discretion to the court. When court actions cost so much to raise and pursue, this factor will tend to dissuade litigation, and so, ten years after the 2006 Act, this appears to have been the case since there has been a lack of reported caselaw.

In short, what is the purpose of any award to the surviving cohabitee? Should the court’s approach look at historical factors during the relationship or the factors which exist at the time of the deceased’s death? For example, is an award meant to be compensation for carrying on a relationship when resources (both financial and social) have been pooled historically? Or is it to be awarded on the basis of need at the time of death given the extent to which the surviving cohabitee was dependent upon and supported by the deceased? No clear-cut guidance is provided in the 2006 Act. By way of contrast, for spouses and civil partners, the former approach is closer to the approach of the law.

In the fifteen years since the law was introduced for cohabitees, there have only been a couple of full reported decisions and both were Sheriff Court decisions (which are not binding precedents). However, both favoured the latter approach. In the case of Savage v Purches (2009), the court made no award to a surviving cohabitee on the basis that they had no need for cash because the surviving cohabitee was not financially dependent. In the case of Windram v Giacopazzi’s Exor (2009), a substantial award was made which was intended to have the effect of allowing the surviving partner to retain the family home and pay off the mortgage then outstanding.

The only matter that comes across clearly from these cases is that the basis for any award to a cohabitee is different from the basis upon which a spouse or civil partner makes a claim.

For the sake of completeness, no awards were made in the case of Chebotarevi v King’s Executrix (2008) because there was no evidence of cohabitation having taken place in Scotland and in the case of Kerr v Mangen (2014), property belonging to the deceased cohabitee outside Scotland (in that case, Ireland) was excluded from consideration.

So, in short, there has only been one reported case in 10 years where the surviving cohabitee has actually obtained an award. This is a law which relates to a situation which must have occurred thousands of times over the last decade or so, so it does not appear to be fulfilling its intended purpose.