Supreme Court judge Lady Hale today called for reform of the law in England and Wales to aid co-habiting couples when their relationship breaks down, and said that lessons can be learned from provisions recently introduced in Scotland by the Family Law (Scotland) Act 2006.
Lady Hale made her comments as the Supreme Court allowed an appeal by 75-year old Jessamine Gow, restoring a £39,500 compensation award after her relationship with her fiancé, Angus Grant, ended, and she left his home in Pencuik. The court ruled that she was entitled to the pay-out under section 28 of the Act, which provides that, where a man and a woman have been living together as if they were husband and wife, and the relationship has ended otherwise than by death, either party claiming economic disadvantage from the breakdown can apply for financial provision.
She said: “There are lessons to be learned from this case in England and Wales. The first is that there is a need for some such remedy as this in England and Wales.”
She said that, such a remedy was proposed by the Law Commission in 2007 in its report Cohabitation: the financial consequences of relationship breakdown, but that the government has chosen to await the results of research into the Scottish scheme before deciding what to do.
Expressing the hope that the government acts before too long, she added: “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. The Act has undoubtedly achieved a lot for Scottish cohabitants and their children. English and Welsh cohabitants and their children deserve no less.”
Mrs Gow met Mr Grant at a singles club in 2001 and, in about December 2002 , she agreed to move in with him on condition they became engaged to be married.
They lived together as husband and wife until January 2008, when their relationship came to an end and she left Mr Grant’s home for rented accommodation.
The Sheriff Court in Edinburgh awarded her £39,500, largely to reflect the difference in value between the price she sold her studio flat in Edinburgh for in December 2002, £50,000, and what it would have been worth had she remained there, £88,000.
The sheriff found that Mrs Gow had contributed financially to the parties’ expenditure during the period of cohabitation, and that Mr Grant had also derived an economic advantage from her non-financial contribution in looking after the house in which the parties cohabited and in other ways.
However, the Second Division of the Inner House of the Court of Session allowed Mr Grant’s appeal and stripped Mrs Gow of the award.
It found that, although Mrs Gow was encouraged to sell her house by Mr Grant, the proceeds were then used either for her own purposes or to meet the parties’ joint living expenses, and the encouragement was clearly insufficient to draw the inference that the transaction was “in his interests”.
It said that economic disadvantage suffered by Mrs Gow during the relationship was plainly offset by the economic advantage that she derived from his contributions towards joint living expenses.
However, overturning that decision and reinstating the award, Lord Hope said that the key question was whether the applicant was left with some economic disadvantage for which an award might be made.
He continued: “The Second Division appear to have overlooked the sheriff’s finding that the economic disadvantage that Mrs Gow suffered in the interests of Mr Grant was her loss of the benefit of the increase in value of her principal capital asset.
“The overriding principle was one of fairness, rather than precise economic calculation – having regard to where the parties were at the beginning of their cohabitation and where they were at the end. The sheriff was entitled to hold that the loss of the benefit of the increase in value was an economic disadvantage, and that it was suffered by Mrs Gow in the interests of her relationship with Mr Grant.
“As she noted, when the cohabitation ended Mrs Gow did not have a home whereas Mr Grant still had a home which had increased in value. I do not think that her conclusion that Mrs Gow should be compensated for that disadvantage can reasonably be criticised.”
Gow v Grant Supreme Court (Lord Hope, Lady Hale, Lord Wilson, Lord Reed, Lord Carnwath) 4 July 2012
Janys M Scott QC and Kirsty Malcolm (Instructed by Hughes Walker) for the appellant
Iain G Armstrong QC and Catherine Dowdalls (Instructed by Allan McDougall) for the respondent
