It took the rather unremarkable case of Mrs Gow and Mr Grant to finally shed light on the confusion.

• Mrs Gow moved in with Mr Grant in 2002.
• The couple became engaged
• For a time enjoyed an active social life and holidays abroad.
• Mr Grant encouraged Mrs Gow to sell her flat so that the couple may advance their relationship, which she duly did in 2003.
• The parties lived together until 2008 when they separated.
• Mrs Gow raised a claim in terms of the 2006 Act for a capital sum.

The Sheriff held that as Mrs Gow had sold her flat in the interests of Mr Grant and now had nowhere to live, she was due a sum from him together with a small sum in respect of a timeshare the parties had acquired.  The Sheriff calculated that as Mrs Gow had sold her flat in 2003 she was entitled to the value of the flat at the date of decree less the sum the flat was realised for in 2003.  This, together with £1,500 for the timeshare, gave a sum of £39,500.

Mr Grant appealed to the Inner House of the Court of Session.  The Second Division held that Mrs Gow had not sold her flat solely in the interests of Mr Grant but for their mutual benefit so it was not correct that she could claim a sum from him.  Therefore their Lordships took a much stricter approach in interpreting what economic advantage and corresponding disadvantage meant in the context of the 2006 Act.  Accordingly, Mr Grant won his appeal.

Mrs Gow then appealed to the Supreme Court where she was successful.  The Supreme Court unanimously held that the underlying principle of section 28 was fairness, although there is no reference in the 2006 Act as to what might be fair or reasonable.  The provision existed so as to correct economic imbalances that might arise on cohabitants separating whilst recognising that cohabitation is a more fluid structure than marriage or civil partnership.  The effect of Mrs Grant selling her flat in the interests of furthering her relationship with Mr Grant gave rise to her incurring an economic disadvantage and as such, Mrs Gow could be compensated for that.  It was held that provided economic disadvantage had been suffered to some extent by the applicant in the interests of the defender then that would be sufficient to allow a claim for a capital sum.  Their Lordships accordingly reversed the decision of the Inner House and Mrs Gow received her award of £39,500.

The decision of the Supreme Court can be found here.  This decision has significant implications for cohabiting couples who separate and potentially widens the scope of those who may successfully apply for a financial award.

If you are unmarried and would like legal advice specific to your individual circumstances please get in touch with TC Young’s family team.

Thanks to Nicola Gilchrist, Advocate, Arnot Manderson Stable for writing this blog.

There are a number of common myths amongst cohabiting couples: 

• We are common law husband and wife
• Cohabitation rights are the same as  married couple’s rights
• My partner has always been fair so I doubt he would change
• My partner wouldn’t claim anything from me when we split up

The first two statements are untrue and the last two statements are hopeful!

Supreme Court decision – Gow v Grant

Until 4 July 2012 the legal rights of cohabitants following separation were unclear. The Supreme Court decision in Gow v Grant [2012] UKSC 29 has cleared up many uncertainties.  The decision states that the financial position of the parties at the start and end of the relationship needs to be determined. This will help establish whether either party has suffered an economic advantage or disadvantage in the interests of the other from contributions (financial and non-financial) made during the relationship.  An exercise needs to be carried out to balance the respective positions of each party.  Essentially it is an exercise which should be governed by fairness.

Cohabitation rights are very different from married couples’ rights in that there is no equivalent concept of matrimonial property and debts. When dealing with a cohabiting couple each party retains their own property and debts.  If one party has suffered an economic disadvantage then they must apply to the appropriate Court for a capital sum; or payment of a sum in respect of the burden of caring for any children of the relationship.  The Court can also make any other order as it sees fit.  Any claim resulting from the breakdown of a cohabiting relationship must be raised in the relevant court within 12 months following the date of separation.

TC Young have experienced family lawyers in both our Glasgow and Edinburgh office; get in touch if you’d like to discuss cohabitation rights in more detail.

 A ‘child in need’ is one:

•  unlikely to achieve or maintain a reasonable standard of health or
• development unless assistance is provided; or
• whose health or development is likely to be impaired significantly unless such services are provided; or
• who is disabled; or
• who is adversely affected by the disability of another member of their family.

If the Social Work Department in your area is concerned about your child they will contact you to discuss their concerns.  Their starting point is to try to help you to ensure that your child can remain within your care.  If that is not possible, for whatever reason, they will consider your child living with a family member (kinship placement).  As a last resort they may remove your child from the family home and place them in foster care.

It is Social Workers who deal with Children’s Services.  They need authority from either yourself, the Children’s Reporter or the Court before they can make any decisions about your child’s welfare.  If you agree to their help then your child’s place of residence will be set out in a voluntary agreement that you will be asked to sign.  This may involve residence conditions which you will need to comply with.  If your child is removed from the family home you will also be asked to agree to contact conditions. 

If you do not agree with a voluntary arrangement and Children’s Services are sufficiently concerned about your child, a Social Worker can apply for a Child Protection Order which may be granted by a Sheriff.  This order enables the Social Work Department to make decisions about residence and contact without your consent.  A Child Protection Order is only a temporary resolution.  If you have parental rights and responsibilities, or usually have care and control of your child, you will be invited to attend Panel hearings.  (These hearings are also known as Children’s Hearings.) 

Children’s Services is there to protect your child and not you.  If you need any legal advice on decisions being made by the Social Work Department or their involvement in your life please contact one of our experienced family solicitors.

What is a Separation Agreement?

Sometimes referred to as a “Minute of Agreement”, a Separation Agreement is a contract or written agreement entered into between two people who have separated.  It sets out what is to happen with the various items of matrimonial property, such as money and assets; including pensions, investments or shares, as well as who is to be responsible for any existing debts; including mortgages, credit cards or hire-purchase agreements.

What is “matrimonial property”?

This comprises all assets acquired by either or both of the parties during the marriage, and held at the date of their separation.  However, as a general rule, any assets acquired by gift or inheritance from a third party will not form matrimonial property.

What is the “date of separation”?

The date of separation or “relevant date” as it is often referred to, is not always easily identified, or agreed upon.  It is the date on which a couple ceased to live together as husband and wife.  By definition, therefore, a couple can both continue to reside in the family home but be considered “separated” in law.  Establishing, or agreeing upon a date of separation is extremely important as it provides the date on which all assets and liabilities will be “valued”, and this value will then be used in the parties discussions with a view to agreeing overall division or settlement.

It is important that both parties have taken (or have had the opportunity to take) their own legal advice prior to signing a Separation Agreement.  Even if matters have been agreed between you, one solicitor cannot represent both parties’ interests.

If you’d like to discuss your personal circumstances in more detail with an experienced family lawyer, please contact us – we have offices in both Edinburgh and Glasgow.

Marriage, Divorce and Civil Partnership
Following marriage or a civil partnership you can use your birth name or your spouse’s or partner’s.  A marriage or civil partnership certificate is sufficient proof to instigate this change.

If you divorce or dissolve a civil partnership an extract decree of divorce or dissolution is sufficient documentation for you to use your previous surname.

Although you can change your name informally, some agencies, such as the DVLA, Passport Authority, or banks and schools, may ask for proof to show the connection between the new and the original name.

How to get a birth certificate which shows a new name
Application forms are available from any local Registrar of Births Deaths and Marriages in Scotland or the General Register Office.

• Form 24 is used for anyone 16 years or over
• Form 23 is used for anyone under 16 years
• Form 21 is used for infants under 12 months old

Where two parents have parental rights both must sign the form. If only one parent has parental rights then that parent alone can sign but an additional form PRF must be completed.

The completed form(s) (currently £40 plus £15 for a new certificate) goes to the Change of Name Unit, New Register House Edinburgh EH1 3YT.

Statutory Declarations
This is another way of providing proof of a change of name and is a signed document declaring that from a stated date, an individual has been using the new name.  It must be prepared by a Notary Public or a local Registrar.

A parent can sign such a declaration on behalf of a child under 16 years.

Changing your name by deed poll is relevant in English law only.

If you have any questions in relation to changing your name, or would like legal advice in relation to a marital breakdown, get in touch with one of the family team.

• that every situation is different and what works for one person will not necessarily work for another
• outstanding issues can be resolved without acrimonious exchange of lawyers’ letters or by court action
• the different procedures that are available
• that it can take time to come to terms emotionally with a separation and no one should feel rushed in to making decisions

The most common way to address the issues that arise from a separation is for your solicitor to enter in to a dialogue with another lawyer. Experienced family lawyers will support their clients and argue their case but should never make a situation more contentious that it is.

Family mediation can help couples in conflict to communicate more effectively with one another, with the assistance of a trained independent mediator, who will discuss the options available and help the parties to work through their differences together.  Although the prospect of sitting together can sometime be daunting, it can be a very effective procedure.  The mediator’s role is not to impose solutions but to allow the parties to work them out for themselves.

Collaborative family law is another way of proceeding where the parties work with their solicitors to reach solutions through a series of four way meetings, rather than going to court.  The parties themselves can never be prevented from litigating but cannot do so using the solicitors instructed in the collaborative process.

It may also be worth mentioning that arbitration is now available in family disputes, through the Family Law Arbitration Group Scotland (FLAGS).

There are of course some cases in which litigation is necessary and cannot be avoided. The important thing is that the procedures involved and the cost are fully explained at the outset.

If you are in a difficult situation and don’t know where to start please contact me for specific advice.

Scottish Family law states that where a child wishes to express a view they must be allowed to do so. Thought must be given to the best way to obtain that view. It will not be the only factor taken into account in a case, and ultimately the court will decide what weight should be placed on the child’s opinion.

Most people in a stressful dispute about childcare arrangements expect their son or daughter to be asked “where they want to live” or “if they want to see the parent they are not living with”. Is that really what children want?

When I speak to children they do want to be heard, but they want to say things to their parents like:

• “stop fighting”
• “don’t argue in front of us”
• “talk to one another about things that affect us”
• “we don’t like it when you say bad things about each other” and
• “we don’t want to take sides or choose”.

When their parents separate, children want to stay close to both parents. They don’t need the burden of decision making. In difficult separations lawyers must help their clients remember that it is the things they find hard, like talking to one another, that matter most to their children.

If your child is caught in the middle and needs advice from an experienced family lawyer he/she can speak to me in confidence.

If you are worried about how your circumstances are affecting your children, contact me at lyc@tcyoung.co.uk or 0141 221 5562.