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A recent Supreme Court judgement in the long-running case of Gow v Grant [2012] was published yesterday, of the ruling, Lady Hale is quoted as saying the case “has lessons for the way the law should be reformed in England and Wales”

She said the first lesson was that there was a need for “some such remedy” as that provided by Scottish law and she supported calls by Law Commissioner Professor Elizabeth Cooke that reform should not be delayed before the “early days” of the next parliament.

“The second lesson is that reform needs to cater for a wide variety of cohabiting relationships which may result in advantage or, more commonly, disadvantage to one of the parties,” Lady Hale said.

“There is a tendency to concentrate upon the younger couples who have children, where one of them suffers financial disadvantage as a result of having to look after the children both during and after the relationship.

“It may be very difficult to say that the other party has derived any economic advantage from those sacrifices, but it is entirely fair that he should compensate the children’s carer for the disadvantages that she has suffered.”

Lady Hale went on: “This case was an example of such disadvantages arising in a completely different context, but one which is by no means uncommon these days: a mature couple, both of whom have been married before, each of whom has a home and an income from pensions or employment, but where one of them gives up her home and at least some of her income as a result of their living together.

“At the end of the relationship, one of them may be markedly less well off than she was at the beginning, whereas the other may be in much the same position as he was before or even somewhat better off. Such cases should not be forgotten in any scenario-testing of proposed reforms.”

Lady Hale said a third lesson from Scotland was that the lack of any definition of cohabitation, or a qualifying period of cohabitation for couples who do not have children, had not proved a problem.

She said the fourth lesson was that the “compensation principle”, although attractive in theory, could be very difficult to apply in practice because of the problems of identifying and valuing advantages and disadvantages.

Lady Hale concluded by saying that the flexibility of the Scottish law was preferable to the Law Commission’s proposals that losses should be shared, while the Commission’s list of factors to be taken into account could be a “useful addition” to Scottish law.

“The main lesson from this case, as also from the research so far, is that a remedy such as this is both practicable and fair. It does not impose upon unmarried couples the responsibilities of marriage but redresses the gains and losses flowing from their relationship.

“As the researchers comment, ‘The Act has undoubtedly achieved a lot for Scottish cohabitants and their children’. English and Welsh cohabitants and their children deserve no less”.

It is interesting that yet again, Scots family law is seen as a bit of a trail-blazer in striving for fairness. Under the Family Law (Scotland) Act 2006, provision was made for and   provides discretion to the court for both making of an award and the amount to be awarded when cohabitation has ended otherwise than by the death of one of the cohabitants. Usually, it is younger co-habitees with dependent children that would benefit from such provision to seek financial redress for “economic advantage, disadvantage or contribution”, such as the financial disadvantage as a result of having to look after the children both during and after the end of the co-habitation relationship. But, Lady Hale makes a very pertinent point about those more mature co-habitats,  where one party is likely to have suffered a greater financial disadvantage by selling their home and at least a portion of their income.   Lord Hope, delivering the main judgment in Grant v Gow held, inter alia, that; i) Although the general principle of fairness is not explicitly referenced in section 28, it is the overarching principle when making an award under that section: the purpose of having regard to the factors in subsection (3) is to achieve fairness in the assessment of compensation for contributions made or economic disadvantages suffered in the interests of the relationship. Therefore, the wording of subsections (3), (5) and (6) of that section should be read broadly; ii) Section 28 is unlike similar provisions relating to financial provision on divorce or the termination of a civil partnership: the rebuttable presumption at the end of cohabitation is that each party will retain his or her own property. Rather than a precise economic calculation, it is important to have regard to where the parties were at the beginning of their cohabitation and where they were at the end; iii) However, it may be helpful to refer to cases decided under section 9(1)(b), Family Law (Scotland) Act 1985, when the court is considering what might be taken to be an economic advantage, disadvantage or contribution for an order under section 28; iv) the natural meaning and effect of the phrase ‘in the interests of the defender’ contained in section 28(3)(b) and (6) is directed to the effect of the transaction rather than the intention with which it was entered into. ‘Provided that disadvantage has been suffered in the interests of the defender to some extent, the door is open to an award of a capital sum even though it may also have been suffered in the interests of the applicant’

But should those who choose not to seek state registration of their relationship (and in fairness there are some who are unable to formally register their relationship) expect the same level of legal protection as those couples who are married?  Given that a co-habitation relationship does not always necessarily indicate permanence and commitment and indeed can be a transitory relationship, I would argue that no, there should not be the same level of legal protection and rights.  Cohabitees are far more likely to break-up than marriages. The median length of UK cohabitations is under 2 years. Just 4% of these last more than 10 years (Ermisch & Francesconi, 1998). 84% of UK cohabiting couples dissolve within 5 years (Kiernan & Estaugh, 1993). Unmarried parents are still 4-5 times more likely to break up than married parents (Boheim & Ermisch, 1999; Lindgren, 1997). Within 5 years of the birth of a child, 8% of UK married couples have split up, compared to 52% of cohabitees, and 25% of those who marry after the birth (Kiernan, 1999)
Prior cohabitation raises divorce risks. Many studies across the world find that prior cohabitation raises the risk of subsequent divorce by around 40-85% (Bumpass & Sweet 1995; Kahn & London, 1991; Haskey 1992). Multiple cohabitation may be the risk factor.

But there does need to be some degree of legal protection for co-habitees that are financially disadvantaged by the end of the relationship, and I feel that there is adequate provision made in the Family Law (Scotland) Act 2006 – but this Act is only applicable to those living in Scotland. England and Wales provide little in the way of provision, as amply demonstrated by Kernott v Jones [2011] case, and co-habitees often rely on the exceptionally complex TOTALA  (Trust of and and Appointment of Trustees Act 1996), which concerns itself with property, and not financial provision for co-habitees.  The case of Gow v Grant [2012], in the words of Lady Hale;  “clearly illustrated that there is a need for legal reform to provide a similar remedy in England and Wales. Although the Scottish law would benefit from a list of factors to be taken into account in the exercise of the court’s discretion, the inherent flexibility was preferable. Yet the main lesson was that ‘a remedy such as this is both practicable and fair. It does not impose upon unmarried couples the responsibilities of marriage but redresses the gains and losses flowing from their relationship’ ”

You can read the full Supreme Court judgement on Gow v Grant [2012] here – http://www.supremecourt.gov.uk/docs/UKSC_2011_0184_Judgment.pdf