Gow (Fc) Appellant Against Grant Respondent
| Jurisdiction | Scotland |
| Judge | LORD HOPE,LADY HALE,LORD WILSON,LORD REED,LORD CARNWATH |
| Judgment Date | 04 July 2012 |
| Neutral Citation | [2012] UKSC 29 |
| Court | Supreme Court (Scotland) |
| Docket Number | No 1 |
| Date | 04 July 2012 |
[2012] UKSC 29
THE SUPREME COURT
Trinity Term
On appeal from: [2011] CHIH 25
Lord Hope, Deputy President
Lady Hale
Lord Wilson
Lord Reed
Lord Carnwath
Appellant
Janys M Scott QC
Kirsty Malcolm
(Instructed by Hughes Walker)
Respondent
Iain G Armstrong QC
Catherine Dowdalls
(Instructed by Allan McDougall)
Heard on 24 May 2012
LORD HOPE (WITH WHOM LADY HALE, LORD WILSON, LORD REEDANDLORD CARNWATHAGREE)
It was not until the end of the last century that those who were thinking about the reform of the law in Scotland paid any attention to the problems created when men and women decide to live together without getting married. The traditional approach was that nothing short of marriage would create rights in each other's property in the event of death or separation. But entering into a regular marriage, with all the formalities that this involved, was not essential. As every student of Scots law knows, the common law recognised three ways in which an irregular marriage could be constituted: by declaration de praesenti; by a promise to marry subsequente copula; and by cohabitation with habit and repute. The first two were abolished by the Marriage (Scotland) Act 1938. The third survived until it too was abolished by section 3 of the Family Law (Scotland) Act 2006.
Irregular marriages had to be proved, however. So a form of action was devised for this purpose. Either of the parties could bring proceedings for declarator of marriage, even after the death of the other party. The declarator was a judgment in rem. Its effect was to provide conclusive proof that a marriage had been constituted, and it was binding on all persons whomsoever: Longworth v Yelverton (1867) 5 M (HL) 144, per Lord Chancellor Chelmsford at 147. There were various reasons why such an order might be sought. Usually it was to obtain the benefit of the property rights that were enjoyed by the parties to a regular marriage. Before the law on legitimacy was reformed it was used to enable the children of the relationship to obtain the rights that were conferred on the children of a marriage too. Very occasionally, when it was still the practice for undefended actions of divorce to be heard in the Court of Session, the unremitting diet of divorce proofs would be varied by an action for declarator of marriage which the other party did not wish to defend.
But the opportunity of proving a marriage by cohabitation with habit and repute was of use only to those who had the capacity to marry, were free to do so and were content to live together as husband and wife. It was not available to cohabiting couples who had deliberately chosen not to marry. And couples who had not made that choice but had made no effort to pretend that they were married to each other were unlikely to be able to produce evidence of habit and repute to show that they were living together as husband and wife. It was an unsatisfactory system, as many people who had committed themselves to a relationship as cohabiting couples and were under the impression that their relationship was one of common law marriage were unable to meet the legal requirements of the common law. Social attitudes were changing too, and pre-marital cohabitation was becoming the norm. One of the recommendations in the Scottish Law Commission's Report on Family Law (Scot Law Com No 135) (6 May 1992) was that this form of irregular marriage should be abolished, as it was anomalous: recommendation 42. It addressed the issue of cohabitation in Part XVI of the same report. This issue had been the subject of a discussion paper issued two years previously: The Effects of Cohabitation in Private Law (Discussion Paper No 86, May 1990).
In para 16.1 of its Report the Scottish Law Commission said that the results of its consultation, and of a survey of public opinion, had confirmed it in its view that there was a strong case for some limited reform of Scottish private law to enable certain legal difficulties faced by cohabiting couples to be overcome and to enable certain anomalies to be remedied. It accepted, however, that legal intervention in this area, as to which widely differing views were held, ought to be limited. There was a respectable body of opinion that it would be unwise to impose marriage-like legal consequences on couples who had deliberately chosen not to marry. The reform ought not to undermine marriage, nor should it undermine the freedom of those who had deliberately opted out of marriage.
It went on to say that the presumption of equal sharing of household goods acquired during marriage under section 25(2) of the Family Law (Scotland) Act 1985 should, in a case of cohabitation, be modified. A comprehensive system of financial provision on termination of cohabitation comparable to the system of financial provision on divorce on principles analogous to those in sections 9(1)(d) or 9(1)(e) of the 1985 Act was not favoured. That would be to impose a regime of property sharing, and in some cases, continuing financial support on couples who might well have opted for cohabitation to avoid such consequences: para 16.15. But the principle in section 9(1)(b), which enables fair account to be taken of any economic advantage derived by either party from contributions by the other, and of any economic disadvantage suffered by either party in the interests of the other party or the family could be applied, quite readily and appropriately, to cohabitants: para 16.18. A similar approach was taken to the question whether a surviving cohabitant should succeed on intestacy to his or her deceased partner's estate. A discretionary system, to enable the court to take account of all the circumstances of the relationship, would be preferable to any fixed rules.
These proposals were summarised in recommendations 80 to 83, and a draft Bill was appended to the Report. Part III of the Bill dealt with cohabitation. More than 10 years were to pass, however, before legislation was introduced to give effect to these recommendations. In the meantime the trend for couples to prefer cohabitation rather than marriage had increased. It was estimated that, of families by type of family in Scotland, the percentage of cohabiting couple families had increased from 4% in 1991 to 7% in 2001, and that the percentage of married couple families had decreased from 50.7% in 1991 to 42.5% in 2001: LegalPractitioners' Perspectives on the Cohabitation Provisions of the Family Law (Scotland) Act 2006 (Centre for Research on Families and Relationships, University of Edinburgh, May 2010): see http://www.crfr.ac.uk/reports/Cohabitation%20final%20report.pdf. This is a trend which can be expected to have continued.
In March 1999 the Scottish Office Home Department issued a Consultation Paper entitled Improving Scottish Family Law. But the opportunity to bring the Scottish Law Commission's proposals into law did not present itself at Westminster during the period prior to the coming into effect of the Scotland Act 1998. The process of consultation was then taken up by the Scottish Executive, and on 7 February 2005 a Bill which became the Family Law (Scotland) Act 2006 was introduced by the then Minister for Justice, Cathy Jamieson. It was considered by, among others, the Justice 1 Committee whose Stage 1 Report was published on 7 July 2005. In accordance with the normal procedure the Deputy Minister of Justice, Hugh Henry, provided a detailed written response to the issues raised by the Committee in August 2005. The Stage 2 procedure then followed, and there was a debate in the Parliament on 15 December 2005 when the Bill was passed. The Family Law (Scotland) Act 2006, asp 2, received its Royal Assent on 20 January 2006.
This appeal is concerned with the meaning and effect of section 28 of the 2006 Act. It provides that a cohabitant can apply to a court for financial provision when the cohabitation has ended otherwise than by the death of one of the cohabitants. The drafting of this section was much criticised while it was undergoing Parliamentary scrutiny, and the questions that it raises are not free from difficulty.
The appellant, Mrs Gow, met the respondent, Mr Grant, in 2001 at a singles club which they had both joined. Mrs Gow, who was born on 2 January 1937, was then about 64. Mr Grant, who was born on 18 December 1943, was about 58. They commenced a relationship, and in about December 2002 Mr Grant asked Mrs Gow to live with him at his home in Penicuik. Mrs Gow agreed to do so if they became engaged to be married, which they then did. They lived together as husband and wife and engaged in an active social life together from June 2003 to January 2008, when their relationship came to an end.
When the parties met they each owned their own home and they were each in employment. Mrs Gow owned a studio flat in Edinburgh which was subject to an interest only mortgage, of which £11,876 was outstanding in December 2002. Mr Grant owned a three bedroom house in Penicuik which was free of any mortgage. He encouraged Mrs Gow to sell her flat. Indeed, as Sheriff Mackie who conducted the proof put it in para 4 of her note, her evidence, which the sheriff accepted, was that he was adamant that she should do so. Mrs Gow, as the owner of the property, dealt with the legal and practical aspects of the sale. But Mr Grant discussed the sale with her and gave her advice, particularly as to the price at which the property should be offered. The sheriff held that there was no evidence that Mrs Gow was forced to sell the flat because she was in financial difficulties. She accepted that Mrs Gow sold the property in the interests of furthering her relationship with Mr Grant.
The flat was sold in June 2003 for £50,000, from which Mrs Gow received a net sum after repayment of the mortgage and...
To continue reading
Request your trial
-
DN v UD
...or other determined duration of dependency. There is no established authority to the contrary. The judgment of Lady Hale in Gow v Grant [2012] UKSC 29, [2012] 3 FCR 73, at paragraphs 44 – 56 which urges reform of the law to rebalance the financial consequences of relationship breakdown in ......
-
Jacqueline Whigham V. Steven Owen
...parties. This area of the law has been the subject of recent guidance from the United Kingdom Supreme Court in Gow v Grant, 2012 SLT 829; [2012] UKSC 29. Following that guidance, the pursuer now seeks payment of capital a sum that will give her the equivalent of half of the parties' net ass......
-
Cwr Against Lvbr
...upon which the respondent was ultimately unsuccessful namely (a) that the approach in cohabitation cases as a consequence of Gow v Grant [2012] UKSC 29 made it permissible to consider and value non-matrimonial property for the purposes of an award under section 9(1)(b) – in this case the ap......
-
A (A Child)
...his minority, or other determined duration of dependency. There is no established authority to the contrary. The judgment of Lady Hale in Gow v Grant [2012] UKSC 29, [2012] 3 FCR 73, at paragraphs 44 – 56 which urges reform of the law to re-balance the financial consequences of relationship......
-
Cohabitants And Constructive Trusts After 'Jones v Kernott'
...pressing. Parliament's failure to legislate in this area has been widely criticised, including recently by Lady Hale in Gow v Grant [2012] UKSC 29. However, despite the recommendations of the Law Commission in 2007, no such reforms are on the horizon at present (see Law Com 307 Cm 7182). Wh......
-
Table of Cases
...Council [2015] UKFTT CR/2014/0019 (GRC) 3.161, 4.67, 4.68, App 3 Gordon Hill Trust Ltd v Segall [1941] 2 All ER 379, CA 5.23 Gow v Grant [2012] UKSC 29, 2013 SC (UKSC) 1, 2012 SLT 829, [2012] 3 FCR 73 2.17 Grayan Building Services Ltd, Re [1995] Ch 241, [1995] 3 WLR 1, [1995] BCC 554, [1995......
-
The curious case of marriage/civil partnership discrimination in Britain
...provi-sions), and the Family Law (Scotland) Act 2006 and Lady Hale’s call for similar provisions inEngland and Wales in Gow v Grant [2012] UKSC 29 [44]–[56].59. re P and others [2009] 1 AC 173.60. Lord Hoffmann in re P and others [2009] 1 AC 173 holding that, ‘If being married is a status,i......
-
Political and Legislative History
...England (Lexis-Nexis, 2012), vol 96 (‘Statutes and Legislative Process’), para 1122. See also the Supreme Court decision in Gow v Grant [2012] UKSC 29, 2012 SLT 829 at [29] per Lord Hope, ‘Reference to Parliamentary material has, of course, become commonplace since the previous rule that ex......
-
Intestate Inheritance Rights for Unmarried Committed Partners: Lessons for U.S. Law Reform from the Scottish Experience
...the relationship as a whole”); Gutcher v. Butcher, 2014 WL 4954935 [13]–[17] (Scot.) (official transcript). 82. See, e.g., Gow v. Grant [2012] UKSC 29 [9], [13], (2012) SC 1, 5–6 (Scot.); Lindsay v. Murphy (2010) Fam. L.R. 156, 158 [1] (Scot.); Savage v. Purches (2009) S.L.T. (Sh. Ct.) 36, ......