First findings on financial costs of separating cohabitants concentrates on contributions

LAST Tuesday was potentially an important date for all cohabiting couples because Lord Matthews issued the first opinion of the Court of Session on the financial provisions of the Family Law (Scotland) Act.

This legislation introduced a limited framework for separated cohabitants to pursue a financial claim against the other, a procedure often, but wrongly, referred to in the media as "palimony". It is worth noting that the rules for separating cohabitants are different from those relating to divorcing couples.

The focus of Lord Matthews' opinion in the case that made headlines concerns a claim for 70,000 by a woman who was living with her partner. After analysing the evidence and the arguments, Lord Matthews awarded a total of 14,460.

The couple had cohabited for eight years and had two children now aged nine and six.

The woman argued she had been disadvantaged by giving up her full time job (with pension rights and possible advancement). Her partner's job was unaffected. She argued that although the Child Support Agency made an assessment against the father, she was still burdened with the bulk of the childcare costs that were necessary to allow her to work.

The nub of the legal argument was whether the woman could argue that she had been economically disadvantaged and, crucially, whether the man had gained a corresponding economic advantage.

The court was not assisted by the fact the man represented himself and, in the absence of representation, did not pursue all of the arguments that might have been laid before the court. Accordingly, the judge is at pains to point out that the issues have been approached "broadly", but his opinion nevertheless adopts a forensic and detailed analysis of the contributions (financial and otherwise) of both sides.

The relevant provision of the Act allows the court to award a lump sum in favour of the prejudiced party – ongoing aliment cannot be awarded.

An unusual feature of this opinion is that 13,000 of the award is attributed to the future cost of the two children attending breakfast clubs and after-school clubs. Lord Matthews has sought to distinguish such a payment from conventional child aliment (otherwise dealt with by the CSA).

Nevertheless, it might be thought that such an award is "alimentary" in nature and there is some re-enforcement of that by the fact the capital sum is to be paid by monthly instalments of 400.

Significantly, the other advantage/disadvantage arguments reflecting historic dealings have been rejected or deemed to be self balancing.

Family lawyers may take the view that this case is an unusual and anomalous start to the case law to follow, since the nature of the arguments and the manner in which they were presented were not typical. Nevertheless, the opinion contains useful guidance in respect of the comparisons between divorce law and cohabitation law.

It will not go unnoticed that the award was quite low and that raises questions of affordability for separated cohabitants when assessing the risk of pursuing their claim against the costs of the process of doing so.

• Leonard Mair is head of family law at Morton Fraser