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Case and Comment
THE Supreme Court in Gow v Grant [2012] UKSC 29 heard its first appeal concerning the Family Law (Scotland) Act 2006's financial remedies between cohabitants on separation. Scottish developments have interested lawyers and policy makers in England and Wales since the Labour Government's decision in 2008 to defer any decision on implementation of recommendations by the Law Commission for England and Wales for reform in this jurisdiction (Cohabitation: The Financial Consequences of Relationship Breakdown, Law Com. 307) pending empirical research on the new Scots law. Following the first such research (Wasoff, Miles and Mordaunt, Legal Practitioners' Perspectives on the Cohabitation Provisions of the Family Law (Scotland) Act 2006 (Edinburgh 2011)), and despite its positive findings, the Coalition Government postponed any reform to the next Parliament.
English and Welsh cohabitants, and courts, continue to struggle with claims offered by property and trusts law, in particular the common intention constructive trust, whose contours have arguably become no easier to discern following Stack v Dowden [2007] UKSC 37, [2007] 2 A.C. 432 and Jones v Kernott [2011] UKSC 53, [2012] 1 A.C. 776. Whether trusts law can secure "fair" outcomes in these cases is debatable, and whether it does so might be said to depend on somewhat fortuitous factors unrelated to the true justice of the case. The predicament of the totemic Mrs Burns (Burns v Burns [1984] Ch. 317), who made "only" domestic contributions to the life shared with a partner who owned their home in his sole name, would be the same today as it was 30 years ago.
Meanwhile, Scottish cohabitants enjoy a tailor-made statutory jurisdiction for the grant of financial relief following separation. Scots law deliberately does not equate separating cohabitants with divorcing spouses. The latter have access to a remedial scheme based on five principles (enshrined in the Family Law (Scotland) Act 1985, ss. 8-11) which may be categorised by reference to the three strands rather more loosely identified for English divorcees in Miller v Miller, McFarlane v McFarlane [2006] UKHL 24: sharing, needs and compensation. The first calls for the fair (ordinarily equal) sharing of "matrimonial property", the scope of which (unlike its judicially-created English counterpart) is closely defined...