The parties had lived together as an unmarried couple, but separated. Mrs Gow applied under the 2006 Act for provision. Mr Grant’s appeal succeeded at the Inner House, and Mrs Gow now herself appealed.
Held: The appeal succeeded. The Act did not seek to replicate the regime on the divorce of a married couple, and it was wrong to try to do so. The legislative background suggested the objective of fairness, allowing the court to correct any imbalances arising out of a non-commercial relationship where the parties were quite likely to have made contributions or sacrifices without at the time counting the cost or bargaining for a return. Section 9 allowed fair compensation, but the calculations are not precise, and it would be wrong to approach section 28 on the basis that it was intended simply to enable the court to correct any clear and quantifiable economic imbalance that may have resulted from the cohabitation.
The phrase ‘in the interests of the defender’ had been interpreted too narrowly in the Court of Session, and: ‘where the guiding principle is one of fairness, its more natural meaning is directed to the effect of the transaction rather than the intention with which it was entered into. The reference to the defender at the end of the phrase does, of course, require that the disadvantage which the applicant suffered was in his interests. But it does not say that this must have been his interests only, or that the fact that it was in the applicant’s interests also means that it must be left out of account. Still less does it say that ‘interests’ have to be equated with economic advantage or benefit. ‘
Lord Hope, Deputy President, Lady Hale, Lord Wilson, Lord Reed, Lord Carnwath
[2012] UKSC 29, UKSC 2011/0184
Bailii, Bailii Summary, SC, SC Summary
Family Law (Scotland) Act 2006 9 28
England and Wales
Citing:
Cited – Longworth v Yelverton HL 1867
A declarator of marriage, even after the death of the other party, is a judgment in rem, and it is conclusive proof that a marriage had been constituted, and is binding on all persons whomsoever. . .
Cited – Gow v Grant SCS 22-Mar-2011
The parties had lived together, but remained unmaried. The relationship broke down and Ms Gow claimed under the 2006 Act. Mr Grant now appealed.
Held: The appeal succeeded. Mrs Gow’s application for an award of a capital sum was refused. There . .
Cited – Pepper (Inspector of Taxes) v Hart HL 26-Nov-1992
Reference to Parliamentary Papers behind Statute
The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. Having agreed this was a taxable emolument, it was argued as to whether the taxable benefit was the . .
Appeal from – Gow v Grant SCS 22-Mar-2011
The parties had lived together, but remained unmaried. The relationship broke down and Ms Gow claimed under the 2006 Act. Mr Grant now appealed.
Held: The appeal succeeded. Mrs Gow’s application for an award of a capital sum was refused. There . .
Cited – CM v STS SCS 2-Sep-2008
cm_stsSCS2008
The pursuer sought payment of substantial sums, having been disadvantaged by ceasing work to care for the parties’ children. She also asserted that the defender had been advantaged by her taking the care of the children. The parties were not married . .
Cited – Lindsay v Murphy 2010
The statutory purpose set out in the Act does no more than reflect the reality that cohabitation is a less formal, less structured and more flexible form of relationship than either marriage or civil partnership. . .
Cited – Burns v Burns CA 1984
Long Relationship Not Enough for Interest in Home
The parties lived together for 17 years but were not married. The woman took the man’s name, but beyond taking on usual household duties, she made no direct financial contribution to the house. She brought up their two children over 17 years. . .
Cited – Jones v Kernott SC 9-Nov-2011
Unmarried Couple – Equal division displaced
The parties were unmarried but had lived together. They now disputed the shares in which they had held the family home. It had been bought in joint names, but after Mr Kernott (K) left in 1993, Ms Jones (J) had made all payments on the house. She . .
Cited – Stack v Dowden HL 25-Apr-2007
The parties had cohabited for a long time, in a home bought by Ms Dowden. After the breakdown of the relationship, Mr Stack claimed an equal interest in the second family home, which they had bought in joint names. The House was asked whether, when . .
Cited – Mitchell v Gibson ScSf 2011
Sheriff Principal R A Dunlop QC considered the need to show ‘disadvantage’ under the Act and concluded that, 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 . .
Lists of cited by and citing cases may be incomplete.
Scotland, Family
Leading Case
Updated: 31 October 2021; Ref: scu.462499
