The first decision on quantum of a claim by a cohabitant for post-death financial provision has gone against the claimant

Nearly three years after the introduction of rights for cohabitants we have the first substantive decision on s 29 of the Family Law (Scotland) Act 2006, which allows for applications to the court by a surviving cohabitant for provision on intestacy: Savage v Purches, Falkirk Sheriff Court, 19 December 2008; SAVAGE.html .

In this case a surviving cohabitant, James Savage, raised an action at Falkirk Sheriff Court against the executrix dative of his late partner’s estate. Section 29(1) provides that an application can be made where the deceased dies (i) intestate, (ii) domiciled in Scotland immediately before his death, and (iii) with a surviving cohabitant with whom he was cohabiting immediately before his death. All of these matters were agreed so the only issue before the court was what award, if any, should be made. The pursuer sought a capital sum which failing an order for transfer of the heritable property that the parties had shared, whilst the defender contended that no award should be made. The sheriff held that the pursuer “is entitled to a right in succession on the estate of the deceased… but that… the quantum of the said claim is assessed at NIL”.

The focus of the submissions was on what matters the sheriff could take into account in determining quantum.

Before making any orders – which can be orders for (i) payment of a capital sum or (ii) transfer to the survivor of property from the estate, with “such interim order as it thinks fit” – the court must “have regard” to certain matters set out in s 29(3): (a) the size and nature of the deceased’s net intestate estate, (b) any benefit received, or to be received, by the survivor, on, or in consequence of, the deceased’s death, and from somewhere other than the deceased’s net intestate estate, (c) the nature and extent of any other rights against, or claims on, the deceased’s net intestate estate; and (d) any other matter the court considers appropriate.

A relationship in context

It was submitted for the pursuer that one could not look at the nature of the cohabitation itself in considering the various factors in s 29(3): there was no dependency test and no economic advantage/disadvantage test (as is found in s 28, which relates to post-separation claims). The factors in s 25(2) – the length of the period the couple lived together (two years eight months in this case), the nature of the relationship and the nature of any financial arrangements – were relevant only for determining whether a couple were cohabiting, not for assessing whether the pursuer was are a “worthy” cohabitant.

The sheriff did not agree. First, he took into account what he referred to as the “contextual hinterland in which the claim at the instance of the pursuer presents itself”. In particular under s 29(3)(b) he took account of the value of the death benefit lump sum which the deceased’s employers had split between the parties. He also took account of the adult dependant’s pension paid to the pursuer. He commented: “these benefits, which require to be factored into the court’s exercise of its discretion in terms of s 29(3)(b), are on such a scale in themselves as to militate against the making of any award in favour of the pursuer in terms of s 29 on the basis of either (or a combination of both) craves of the pursuer before the court”.

The sheriff then went on look at what factors he could take into account in terms of s 29(3)(d): “any other matter the court considers appropriate”. He regarded it as proper to have regard to the short length of the relationship between the pursuer and the deceased, contrasting what he saw as the “historical context of the deceased’s prior lengthy relationship” with the relationship between the pursuer and the deceased. He observed, amongst other matters, that “The parties shared no ownership in heritable property, mortgage, or life cover policies. They did not even have a joint account… In seeking to exercise my discretion in a way that does justice between the parties, I have sought to read into s 29(3)(d) the factor of the duration of the relationship within this overall context”.

Readers should be aware that s 29 may be repealed. The Scottish Law Commission is about to report on succession and publish implementing legislation. In addition to looking at succession generally, the position of cohabitants is “being addressed”.

The Author
Rachael Kelsey is a founding director of Sheehan Kelsey Oswald, Family Law Specialistst
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