Introduction

Gow v Grant ([2011] ScotCS CSIH_25) is a pivotal case adjudicated by the Scottish Court of Session's Inner House on March 22, 2011. The dispute arose following the termination of a cohabiting relationship between Jessamine Watson Gow (Pursuer and Respondent) and Angus Grant (Defender and Appellant). Gow sought financial provision under Section 28 of the Family Law (Scotland) Act 2006, requesting compensation for economic disadvantage incurred during the cohabitation. The Sheriff Court had awarded Gow a capital sum of £39,500, a decision upon which Grant appealed. This commentary delves into the court’s rationale, the interpretation of relevant statutes, and the implications of this judgment on future cohabitation disputes in Scotland.

Summary of the Judgment

The Inner House, delivered by Lord Drummond Young, upheld the appeal against the Sheriff Court’s decision to award Gow a capital sum of £39,500. The core of the dispute centered on whether Gow had suffered an economic disadvantage in the interests of Grant, as stipulated under Section 28(3)(b) of the Family Law (Scotland) Act 2006. The Sheriff had determined that Gow was economically disadvantaged due to forced sale of her property and disproportionate financial contributions to jointly owned timeshares. However, the Inner House found that the Sheriff's interpretation was flawed, asserting that the disadvantages Gow faced did not sufficiently benefit Grant directly. Consequently, the appeal was allowed, the Sheriff's interlocutor was recalled, and Gow’s application for the capital sum was refused.

Analysis

Precedents Cited

The court referenced several cases, including M v S (2008 SLT 71), Jamieson v Rodhouse (2009 Fam LR 34), F v D (2009 Fam LR 111), and others that showcased varied and sometimes conflicting interpretations of Section 28. Notably, M v S was highlighted, where the Lord Ordinary had a broader interpretation of the section, incorporating aspects from the 1985 Act related to matrimonial property. However, the Inner House distinguished these cases by focusing solely on the explicit provisions of Section 28, disregarding unrelated sections of the 1985 Act.

Legal Reasoning

The court emphasized that Sections 8-10 of the Family Law (Scotland) Act 1985 pertain exclusively to matrimonial property distribution upon divorce and are irrelevant to Section 28, which deals with compensation for economic imbalances post-cohabitation. The Inner House insisted on a strict, textual interpretation of Section 28, rejecting the notion that broader property distribution principles apply. Furthermore, the court critiqued the Sheriff’s approach for conflating personal financial management with benefits accruing directly to the defender. The essential criterion under Section 28 is whether the economic disadvantage suffered by the applicant was executed to benefit the defender, not merely as a consequence of shared living expenses or relationship dynamics.

Impact

This judgment clarifies the application scope of Section 28, reinforcing that compensation is reserved for clear, quantifiable economic disadvantages directly intended to benefit the defender. It sets a precedent that mere economic contributions or shared expenses do not automatically entitle a former cohabitant to financial provision. Future cases will likely follow this clarification, ensuring that courts meticulously assess the intent and direct benefit to the defender when determining rightful compensation. This decision narrows the circumstances under which financial provisions can be granted, emphasizing the necessity for direct linkage between the applicant’s disadvantage and the defender’s benefit.

Complex Concepts Simplified

Section 28 of the Family Law (Scotland) Act 2006: A legal provision allowing courts to order one cohabitant to pay another a capital sum when their relationship ends, based on economic imbalances.

Economic Advantage: Financial gains in terms of capital, income, or earning capacity derived by one party from the contributions of the other.

Economic Disadvantage: Financial losses or detriments experienced by one party, which can include loss of capital assets or out-of-pocket expenses.

In the Interests of: A legal standard requiring that the economic disadvantage must be caused specifically for the benefit or advantage of the other party.

Conclusion

The Gow v Grant judgment serves as a critical interpretation of Section 28, emphasizing a precise and limited application focused on direct economic disadvantages benefitting the defender. By delineating the boundaries of compensation, the Inner House ensures that financial provisions are not granted based on general financial contributions or relationship maintenance expenses. This decision reinforces the necessity for clear evidence that economic losses are intentionally incurred for the defender’s benefit, thereby providing greater clarity and consistency in the adjudication of future cohabitation disputes. Legal practitioners and parties alike must now approach Section 28 claims with a heightened awareness of these stringent criteria, ensuring that claims are substantiated with direct links between disadvantages suffered and benefits accruing to the other party.