Leanna Mary Selkirk v. Robert Andrew Chisholm, November 2010

The pursuer and defender were cohabitants, who met and formed a relationship in or around June 1998. They became engaged to be married in or around October 1998, although no marriage ever took place between the parties. The parties viewed a property viewed for sale in February 1999, which the defender subsequently purchased in his own name in April 1999. The parties cohabited at the house continuously from Spring of 1999 until March 2008, when they separated. They lived together there as if they were husband and wife. They were therefore cohabitants as defined by section 25 of the Family Law (Scotland) Act 2006.

The pursuer sought payment of a capital sum of £30,000 in terms of section 28(2)(a) of the Family Law (Scotland) Act 2006. It was submitted that the defender had gained an economic advantage from the pursuer’s contributions, due to (i) an increase in the equity value of the house they shared and her direct financial contributions to the outgoings associated with the upkeep of the house, without which the defender would not be able to enjoy the fruits of the increase in value; (ii) the defender having set up and increased the value of his business during their cohabitation. The pursuer’s contributions were both financial and non-financial, the parties having an “old-fashioned” relationship, whereby the pursuer did everything in the home. The pursuer submitted she was a principal source of support to the defender, and had assisted with the administrative tasks involved in setting up a business. The pursuer moreover submitted that she had suffered an economic disadvantage, through leaving matters on an informal basis and leaving their home in the sole name of the defender, despite contributing to its upkeep. Had the pursuer been contributing to the home in the parties’ joint names, she would have shared in the increase in the value of the property.

The defender submitted that the pursuer’s submissions confused the position of cohabitants with that of married couples on divorce. There was no evidence of the pursuer contributing in a meaningful way to the true upkeep of their home, and any contribution to the defender’s business set-up was negligible.

The Sheriff agreed that the concept of making an award to a cohabitant under section 28(2)(a) of the 2006 Act is quite distinct from the financial award made to a spouse under the Family Law (Scotland) Act 1985. The Sheriff noted that there was no concept akin to matrimonial property, equal sharing or fair sharing to be found in the 2006 Act. A review of the authorities on section 28 revealed that none had awarded a capital sum solely on the basis of a contribution to the household bills. The Sheriff noted that even if the evidence were to be preferred that the pursuer had contributed, these were costs she would have incurred anyway in supporting herself. There could accordingly be no economic disadvantage in her having to make these payments which she would have had to make anyway, had she not been cohabiting with the pursuer. 
Accordingly, the Sheriff found that it had not been established that the defender had derived any economic advantage from the pursuer’s contributions, or that the pursuer had suffered any economic disadvantage in the interests of the defender. An order for capital sum under section 28 of the Family Law (Scotland) Act 2006 was therefore not justified.