Death and Disputes

The Scottish Law Commission’s recent Report on Cohabitation did not extend to claims following death. Tom Quail considers the limited guidance, statutory or judicial, under the present law, and calls for reform here also.

In November 2022 the Scottish Law Commission issued its report (Scot Law Com no 261) proposing reform of the law on cohabitation for couples whose relationship ends in separation. The reforms do not extend to the law where a cohabitant dies intestate and a survivor wishes to make a claim under the Family Law (Scotland) Act 2006, s 29. This article will consider the present law on such a claim, the case law, the information relevant to providing advice on a s 29 claim and also look at the present position regarding reform.

Before examining the law, it is perhaps important to understand the context of the legislation. Prior to the 2006 Act, a deceased’s cohabitant had no right to claim in an intestate estate. The principles of economic disadvantage and the economic burden of caring for a child, which presently apply in determining a claim in terms of s 28, do not apply to s 29.

Section 29 orders
Section 29 applies where a person dies intestate and, immediately prior to death, was domiciled in Scotland and cohabiting with another. In such circumstances, the court can order payment of a capital sum to the survivor from the deceased’s estate, or a transfer of property (heritable or moveable) from the estate. The court can also make an interim order.

In deciding whether to make an order, the court has to consider:
• the size and nature of the net intestate estate;
• any benefit received, or to be received, by the survivor as a consequence of the deceased’s death and from somewhere other than the net intestate estate;
• the nature and extent of any other rights against or claims on the intestate estate; and
• any other matter the court considers appropriate.

Any order a court can make (a capital sum or property transfer), cannot be greater than the amount the surviving cohabitant would have been entitled to had they been the spouse or civil partner of the deceased.

Court proceedings can be raised in either the Court of Session or the sheriffdom in which the deceased was habitually resident at date of death (or, if it is unclear which is the relevant sheriffdom, in Edinburgh Sheriff Court). An application to the court requires to be raised and served within six months of the date of death. This time limit is strict and cannot be overridden. This was set out in Simpson v Downie 2013 SLT 178. While that case concerned a claim under s 28(8), the wording of both s 28(10) and s 29(6) (“Any application under this section shall be made”) is the same. Court proceedings should be raised against the executor dative if one has been appointed. It is also recommended that proceedings should be raised against any other party who is entitled to be appointed as executor dative, as the executor has the powers, duties and liabilities in terms of the law of succession.

In making any orders, the court can specify the date the capital sum is to be paid, for the order to be paid in instalments and, in relation to any transfer of property, the date on which the transfer is to take place.

“Net intestate estate” is defined as estate which remains after payment of inheritance tax, other liabilities having priority over legal and prior rights, and the legal and prior rights of any surviving spouse or civil partner.

Uncertainty
Section 29 has given rise to much concern. The factors in s 25(2) of the 2006 Act, such as the length and nature of the relationship which are relevant as to whether or not an applicant is a cohabitant, are not specifically directed to be taken into consideration when the court is exercising its discretion to make an award under s 29. When exercising its discretion, the court appears to be overwhelmed by the number of potentially relevant factors so it is difficult, if not impossible, to focus on factors which are significant in the circumstances of a particular case. There is also a dearth of reported case law. Accordingly, it is difficult to advise a party on whether to proceed with a s 29 application. There has been an understandable tendency for parties to settle without resort to litigation.

With a view to offering some guidance on how to advise on a s 29 claim, it might be helpful initially to consider the two main reported cases, Savage v Purches 2009 GWD 9-157 and Kerr v Mangan [2014] CSIH 69.

Savage v Purches
In Savage, Mr Savage and Mr Voysey (the deceased) cohabited for less than two and a half years. The net estate was £198,000. The deceased had enjoyed a previous relationship of 15 years which led to a will being prepared (it was destroyed when the relationship ended) and an “expression of wish” in relation to a BT pension scheme. The net estate did not include a death benefit lump sum of £249,680, which the trustees decided should be divided equally between the pursuer (Savage) and the defender (the deceased’s half sister), nor did it include an index linked pension from BT which, at the time of the decision, was £9,500 per annum, which the trustees decided should be paid to the pursuer/cohabitant. An actuary valued the net replacement value of the pension rights received by Savage at almost £299,000.

There was no shared ownership of heritable or moveable property, mortgage or life assurance during the parties’ relationship.

At the beginning of the relationship, the cohabitant was a young man earning a modest income, living in tied accommodation. During cohabitation the parties enjoyed a fairly comfortable lifestyle (including a holiday in New York), funded by the deceased. The cohabitant owned his own property and had funds available of approximately £230,000, which derived predominantly from a payment following his father’s death in the Piper Alpha tragedy. He changed career during the relationship, moving into property letting and being supported by the deceased while his business was built up. The deceased kept financial details, and the closeness of his relationship with the defender, from the cohabitant.

The sheriff found Savage to be of limited credibility and reliability, describing him as giving the impression of exuding a sense of self entitlement, and found that while he was entitled to claim on the estate of the deceased, on considering the provisions of s 29 his claim should be assessed at nil.

Kerr v Mangan
In Kerr, the parties had cohabited for 22 years. The issue was whether a house and plots of land in Ireland, valued at not less than €200,000, formed part of the deceased’s net intestate estate. The sheriff at first instance awarded the pursuer £5,502. On appeal, it was determined that the Irish properties were not part of the net estate. This was upheld in the Inner House. Accordingly, the award was reduced to nil as the debts in the estate exceeded the assets.

The court set out its concern that s 29 provided little, if any, indication of underlying principle, that the factors in subs (3) were obvious, but limited, and that the ability to have regard to “any matter the court considers appropriate” gave no useful guidance at all. If clarity was to be achieved, s 29 needed to be replaced with a provision that gave a clear indication not only of the mischief which it sought to address but also of the underlying policy.

Proposed reforms
The Scottish Law Commission in its 2009 Report on Succession (Scot Law Com No 215) proposed the repeal of s 29. It recommended, in deciding whether a couple were living together in a cohabiting relationship, consideration of matters such as whether they were members of the same household; the stability of the relationship; whether they had a sexual relationship; whether they had children together or had accepted children as children of the family; and whether they appeared to family, friends and members of the public to be persons who were married to, in civil partnership or cohabitants.

The Commission also recommended that if the couple were cohabiting, the court should fix an appropriate percentage of entitlement to the estate, having considered:
(a) the length of the cohabitation;
(b) the interdependence, financial or otherwise, between the couple during their cohabitation; and
(c) the surviving cohabitant’s contribution (financial or otherwise) to their life together.

However, these recommendations have not been enacted.

In the Commission’s recent Report on Cohabitation, which was restricted to claims where a relationship ends on separation, the Commission proposed a new definition of cohabitants, being a couple who are or were living together as a couple in an enduring family relationship, aged 16 or over, not spouses or civil partners and not closely related to each other.

In deciding whether there has been an enduring family relationship, the court would have regard to all the circumstances of the relationship, including its duration; the extent to which the couple live or lived together in the same residence; the extent to which they are or were financially independent; and whether there is a child of whom they are parents or who was accepted by them as a child of the family.

These recommendations have only recently been proposed. If enacted, they would not apply to claims for cohabitants whose relationship ends on death.

Quantifying a claim
Having looked at the present legislation, relevant cases and the proposed reforms, what can we take as being the relevant factors in advising on and quantifying a claim under s 29?

The following matters appear to me to be of relevance.
• Any benefits received, or to be received, by the surviving cohabitant other than from the deceased’s net estate require to be taken into consideration in terms of s 29(3)(b), for example the pension lump sum death benefit in Savage v Purches. In valuing pension benefits, a replacement value/actuarial value should be obtained, as was done in Savage.
• It is important to consider all benefits to be paid out using the broader definition of the deceased’s estate, and not the narrow definition in s 29(10). Accordingly, life assurance, death in service benefits, pensions, share options etc are all relevant factors. The value of these and to whom the benefits are paid by the trustees are all factors in quantifying a claim.

In Kerr v Mangan, the court indicated that s 29(3) gave no useful guidance in that matters were not mentioned which might have been considered relevant, such as:
(i) the length of cohabitation;
(ii) the nature and extent of the surviving cohabitant’s own assets or marital status;
(iii) the terms of any prior agreement entered into by the cohabitants;
(iv) the interdependence of their finances;
(v) the needs of the surviving cohabitant;
(vi) the interests of children, and whether those interests should vary according to whether or not they are children of both cohabitants;
(vii) the quality of the cohabitation;
(viii) the nature and extent of any services provided by the surviving cohabitant;
(ix) whether or not there was an intention to marry; and
(x) to what extent it could be said that overall the surviving cohabitant deserves to have the benefit of being treated in the same way as a surviving spouse or civil partner.

However, a number of these factors are referred to in both the Scottish Law Commission’s Report on Succession in 2009 and its Report on Cohabitation in 2022. In addition, while Savage v Purches there were no children of the family, a number of these factors were taken into consideration by the sheriff. The sheriff was of the view that in the exercise of his discretion, he was entitled to take these matters into consideration in terms of s 29(3)(d), namely “any other matter the court considers appropriate”.

Accordingly, in giving advice and in quantifying a claim, the points mentioned above can be taken into consideration. It is very much a balancing exercise. However, taking account of all relevant factors will enhance the cogency of your argument in discussions and also in litigation, in the event that agreement is not able to be reached. As in Savage, an assessment should also be made of your client, otherwise the sheriff may do that.

The Scottish Law Commission indicated in its Report on Cohabitation that problems in this area were identified shortly after the 2006 Act came into force and reform was long overdue. Its proposed reforms in terms of s 28 are aimed at achieving fairer outcomes for cohabitants when their relationship breaks down, by clarifying and simplifying the law. Reforms aimed at achieving fairer outcomes when a relationship ends on death are equally deserving.

This article first appeared in the Law Society of Scotland Journal

WJM Family Lawyer Welcomes New Legal Guidance on Cohabiting Couples

A leading family law solicitor has welcomed new guidance for cohabiting couples in Scotland which will entitle partners to financial support in the event of separation.

Tom Quail, head of the family law team at Wright, Johnston & Mackenzie, believes the recommendations made by the Scottish Law Commission in its latest report will simplify the law while offering a broader range of outcomes for unmarried couples whose relationships break down.

Tom, who specialises in areas including divorce, adoption, and custody arrangements, commented following the publication of the Scottish Law Commission’s report on cohabitation, which makes a series of suggestions to improve and update the law.

Tom said: “This area of the law has long been criticised for being outdated, overly complicated, and unrepresentative of the growing numbers of couples in Scotland who choose not to get married, so this report and its recommendations are very welcome.

“I think the key takeaways from the report are, firstly, that parties in an unmarried, cohabiting couple could be required to provide short-term financial support for former partners, and that a clearer formula is required for judges to apply to calculate levels of financial support.

“At present, the law around financial support for cohabiting couples is unclear, and this report reinforces how important it is to have clear guidance enshrined in law.”

Now the report has been published, the recommendations will go to the Scottish Parliament before the Bill is updated, which could take until 2025.

Tom continued: “In some countries such as Australia and New Zealand, couples who are cohabitants largely experience the same legal rights as married couples if they have lived together for a certain period of time, and many expected the Scottish Law Commission to advise a similar approach to be taken in Scotland.

“However, there are plenty of couples who make the choice not to marry, and it’s important for the law to recognise their decision to do so as much as those who choose to get married. If the law makes the rights the same for unmarried couples, they are effectively eliminating those couples’ choices to be unmarried.

“I welcome these findings and believe updated law in this area is vital to better represent how people are living in the modern world.”

Child Arrangements During Christmas Holidays

After the last two years, time with loved ones has never felt so important. However, for separated parents, Christmas can be a time of worry and stress as arrangements need to be put in place as to where and how the children will spend the festive season.

Here are some tips for avoiding any festive unhappiness and how to agree on arrangements for children during Christmas.

What are my rights for seeing my children over Christmas?

It is recognised that it is in the best interest of the children to see both parents and for children to have contact with both parents.

Unless there are issues of domestic violence and/or abuse, neither parent should prevent the other from seeing the children.

It is strongly advisable to agree an arrangement to ensure time is spent with both parents during what is a magical time of year for all children.

Tom Quail shares some tips on agreeing festive contact arrangements, amicably, as follows:-

Be organised

If you do not have agreed plans in place, start a conversation with your ex-partner and agree an arrangement that works best for you and the children.

Parents tend to agree that Christmas Eve, Christmas Day and Boxing Day are the main days and are dealt with separately from the rest of the holiday period.

Suggested arrangements can include:-

Christmas Eve at one home until lunch on Christmas Day;
- Children spending the entire Christmas period with one parent and alternate the following year;
- Share Christmas Day with the handover after lunch or tea time if you live near to one another;
- Share the holidays so one parent has one week with Christmas and the other has New Year, and alternate each year.

Include the children

Include the children, but do not make them choose. Depending on the age of the children, include them in discussions as older children often need to feel they are being heard.

Once a child is older than five, the courts will want to know their views. Avoid court proceedings, but include the children.

Be fair and considerate to the other parent

Ask yourself if you would be happy with the proposed plan. If the answer is “no”, maybe the plan should be reconsidered.

Put the plan in writing

Once you reach an agreement, it is a good idea to put it in writing, email, send it to the other parent. If there are any other issues, these can be resolved in good time before Christmas. This should also help to avoid any misunderstandings as you have committed it to print.

Stick with the plan whenever possible

Be prepared to be flexible with arrangements for the children and willing to adapt your plans to an extent.

Last minute changes

Last minute changes to the plan often cause feelings of disruption, uncertainty and anxiety. Whilst flexibility is important, it is equally important to have stability.

If you need any advice on child arrangements during Christmas, or any other family law issues, contact Tom Quail for a free minute case review.

The Law on Cohabitation – Proposals for Change

Couples could receive financial support from their partners if relationships break down, a report aimed at reforming the law for cohabitants in Scotland has suggested.

In the report published on 2^nd November, the Scottish Law Commission reviewed the existing law for cohabitants and found it was “out of date, unclear and overly complicated.”

They found attitudes to relationships and families had changed in Scotland since this was introduced as part of the Family Law (Scotland) Act 2006.

The Commission recommended reforms aimed at “achieving fairer outcomes” for cohabitants by simplifying the law as well as a broader range of remedies for when relationships break down.

The report suggest a more modern and inclusive definition of “cohabitant” that does not rely on comparison with married couples or civil partners.

A clearer test for courts to apply when separated cohabitants make a claim for financial provision and guiding principles to achieve fair outcomes for both parties was also suggested.

Parties could provide short-term financial support for former partners in the case of serious hardship, the report suggested, with courts being required to take notice of existing agreements between cohabitants.

Kate Dowdalls, KC, Lead Commissioner on the project, said:- “Problems in this area of law were identified shortly after the 2006 Act came into force. Reform is long overdue.”

The report has now been submitted to the Scottish Government, together with the draft Bill. It may well be that the Scottish Government would wish to consult on the proposed changes and recommendations. A possible date for the Bill to become law is 2025.

Until the law is changed, cohabitants have to rely for financial provision on a law which is unclear and complicated. There is a strict one year time limit after separation for making a financial claim, after which the claim is time barred. Until the law is changed, it is important to obtain specialist legal advice in this area.

Please get in touch if you would wish to know how to make a claim for financial provision within the one year time limit.

Warning Issued Over ‘DIY’ Sperm Donation Agreements

Tom Quail, family law specialist at WJM, has issued a warning to those considering a ‘DIY’ sperm donor agreement instead of going through regulated clinics.

Doctor holding urine sample cup. Medical test in hospital.

As the unregulated sperm donation market continues to grow and more people opt for private arrangements, greater awareness of the legal implications is needed.

He said: “While it is illegal to sell sperm in the UK, there is a growing trend of people obtaining sperm through unofficial and unregulated channels, whether that’s by using online marketplaces or making arrangements with close friends.

“However, as well as the lack of screening for medical conditions or background checks on donors, there is also a host of legal implications which it’s vital to consider.

“Some people going down this route may decide to draw up and sign a ‘donor’ or ‘co-parenting’ agreement to set out in writing what is agreed between all parties, believing these are legally binding. They’re not, nor are they a guarantee about the role a donor will or won’t have in the child’s life.”

He warned that the consequences of donating sperm through a licensed clinic and donating through a private arrangement differ considerably.

Donors who donate their sperm through a licensed clinic are not treated as the legal father of any child they help conceive. This means that a clinic donor cannot be held financially accountable for their genetic children, nor will any donor-conceived children have any rights of inheritance from the donor. Furthermore, the donor will also not have any say in the upbringing of the child.

By contrast, a donor who donates sperm outside of a licensed fertility clinic will not acquire the same automatic protection, and will be considered the legal father of the child.

Tom added: “A sperm donor should think carefully about the role they may wish to play in the child’s life and whether they want to have any contact with the child in future. If they don’t, there is the potential for disputes further down.

“Going down the non-licensed route can lead to major problems and exposes all those involved to potential legal battles in future.

“Some people may feel the licensed clinic route is cost prohibitive, but in reality going down the route of a DIY donor legal agreement could have considerable consequences so it is important to take this into consideration and plan carefully from the outset.”

Most Important Factor when Relocating is what is Best for Children

With international travel back on the cards after two years of significant restrictions, it stands to reason that we’re going to experience an increase in the number of people relocating to new countries.

Some who live in Scotland but are originally from elsewhere may have been hoping to move back to their home country for some time but have been unable to do so until now as a result of travel restrictions.

For those who are parents, this also means facing the challenge of relocating children. This can be a lengthy process at the best of times, but for separated parents, it can be incredibly complex from a legal standpoint.

The decision to relocate can be incredibly emotional and complicated and when children are involved, another layer of complexity is added, especially when the parents are separated and have differing opinions on the relocation.

When this is the case, it can be near enough impossible for the other parent to relocate to their selected country.

This presents a legal issue and one that should be handled as soon as possible when planning a significant move.

Taking a child out of the country without having the other parent’s consent, can be considered wrongful removal or abduction. Getting the child back from this situation is also dependent on where the child has been moved to.
If a child has been moved permanently to a country that is part of The Hague Convention on the Civil Aspects of

International Child Abduction, then there are procedures in place to ensure the safe return of the child to the UK.

If, however, the country is not part of this convention, a different approach must be taken. This involves getting consular and diplomatic services involved including the Foreign and Commonwealth Office.

In Scotland, it is not a criminal offence to take your own child abroad without the permission of the other parent unless there are certain court orders in place. The legislation differs in England and Wales where a single parent is prevented from taking children abroad without another parent or carer’s permission.

The Children (Scotland) Act 1995 does not require a signature from the other parent as proof of consent to the child being moved away, however, it is generally a wise course of action to obtain this anyway.

It is important to keep in mind that other countries may have different regulations, and these should be thoroughly researched before travel.

Some countries will require signed affidavits from the other parent as proof of consent to travel, where others will want to see the child’s birth certificate, or even an extract decree of divorce if that is the current state of the relationship.

Border controls are very thorough when an adult is travelling with a child, and most family lawyers can assist with organising all the relevant documents and paperwork that may be required.
If one partner does not want their child to move to another country, they may raise a court action, which would prevent the other parent from taking the child out of the UK.

They may even go one step further and ask the court to have the child’s passport surrendered and their whereabouts declared at this point.

The most important factor to consider before moving abroad is what is best for the child. Of course, there are lots of factors to consider and weigh up.

Arrangements must be made to ensure parents will be able to remain in regular contact with their child, as well as what their schooling situation will be when they relocate, amongst other factors such as living circumstances.

Courts are also likely to take the child’s feelings on the situation into account but will balance this with the proposal of the parent who wishes to relocate and determine if they have a genuine motivation to move and that they do not wish to sever any contact between the other parent and the child(ren) in question.

It is always advisable to seek legal advice, whether you are the parent hoping to move abroad or the other parent in the scenario before the relocation process is too far along.

A solicitor will be able to talk you through each step and advise on the process to ensure the child’s best interests are taken into consideration at every turn.

This article first appeared in The Scotsman

Effects of the Children (Scotland) Act 2020

What changes will the Children (Scotland) Act 2020 make for children and young people?

The Children (Scotland) Act 2020 was passed by the Scottish Parliament in August 2020. The changes have not yet been brought into force to give the Government, Local Authority Courts and Children’s Hearings time to prepare for the changes before they have to start delivering them.

The new Act covers lots of different things. It:

brings the law into line with children’s rights under the United Nations Convention on the Rights of the Child (UNCRC) to ensure that children’s views are heard in family court cases and that the best interests of the children are at the centre of these cases; and

gives more protection to victims of domestic abuse and their children.

The main changes for children and young people are:

Children and young people will have more opportunity to give their views to court

The courts will have to take the starting point that all children are capable of giving their views no matter how old they are. All children who want to give their views must be given the chance to do so and in a way that they prefer, whether that is speaking to the Judge or other means of setting out their views.

At the moment, there is a presumption that a child aged 12 and over is mature enough to give an opinion, however, by changing the law there is a clear signal that children of all ages have a right to be heard. Once they have been heard then the person making the decision has to take account of those views and also their age and maturity.

Courts will explain their decisions to children

When a Judge or a Sheriff makes a decision as to where a child is to live (residence) or time that they have to spend with the other parent (contact), that decision has to be explained to the child in a way that they can understand.

Every decision doesn’t have to be explained to the child, only major decisions like ones on living and contact arrangements

Children will have support advocacy workers in family court actions

Advocacy workers will support and represent children when courts are deciding for example where they should live and what contact they should have with the other parent. This will take time to put in place that the Scottish Government now must start setting up these services for children who are giving their views to the court.

Measures to keep children safe in contact centres

Child Contact Centres are places where children, parents and other people in children’s lives can meet. Contact Centres will have to follow rules which will be put in place.

Other Matters

Local authorities will have a legal duty to support, care experienced brothers and sisters relationship when they aren’t able to live together;

A register of Child Welfare Reporters (who give a report to the court about a family situation) and Curator ad litems (who can be appointed by the court to represent a child’s interest) is to be set up and rules on how Child Welfare Reporters and Curator ad litems should carry out their duties;

Courts will also have to investigate the reason that contact arrangements are not working and give the child an opportunity of giving their views;

Other changes include rules to avoid legal proceedings taking too long where this would affect a child’s welfare and new measures to assist vulnerable witnesses and parties in court actions.

More information

WJM Partner Tom Quail is here to help with any of your queries about the Children (Scotland) Act 2020, or other family law matters. Get in touch on 0141 248 3434 or email tlq@wjm.co.uk

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Tom Quail