A decade on since its introduction, and s 28 of the Family Law (Scotland) Act 2006 continues to be fertile ground for appellate courts. This time it was Sheriff Principal Murray's turn to grapple with the legislation and consider eight grounds of appeal in W v M [2015] SCPAI 72 (7 October 2015).

Refusing the appeal, the sheriff principal found the sheriff was entitled to take a “holistic” approach in order to achieve fairness between the parties, in identifying the loss to the pursuer and benefit to the defender.

The sheriff principal was more troubled by the question of whether payments made and received prior to the cohabitation resulting in economic advantage and disadvantage could be taken into account. Although there were reasons to think this was not perhaps intended in the Act, by the ratio of Gow v Grant the discretion should lie with the sheriff who heard the case at first instance, and there was no reason to interfere with the sheriff's decision to factor in a pre-cohabitation payment.

The Act is of course currently the subject of a review by the Justice Committee of the Scottish Parliament.

Click here to view the judgment.