Separating cohabiting couples – beware the 1 year rule


A recently decided case in the Court of Session emphasised the need for separating cohabiting couples to take legal advice if one party intends to make a claim for a capital sum against one the other. A key aspect of this case was the failure by the Pursuer to apply to the Court for an order against the Defender to make payment of a capital sum within 1 year of the date their cohabitation came to an end.

The facts of this case are that a Mr Courtney started a relationship with a Ms Campbell in 2009. In May 2010 Ms Campbell bought a property in Glenrothes in her own name for £195,000. It was claimed the intention was that she and Mr Courtney would live together in that property. On 14 May 2010, Mr Courtney paid £50,000 to Ms Campbell and he paid her another £50,000 on 28 February 2011. During the course of their living together, renovations were carried out to the property and Mr Courtney made further payments to Ms Campbell. Their relationship came to an end in May 2013 and Mr Courtney moved out.

There are further complications in this case. Mr Courtney died and the action was raised by his executors. The basis of the action was for unjustified enrichment rather than a straightforward claim for a capital sum because the one-year time limit was missed.  In her defence, Ms Campbell claimed that Mr Courtney knew that the house was in her name alone and that he was simply sharing the house rather than cohabiting with her. Ms Campbell had a son and Mr Courtney’s executors claimed that it was the son who asked him to leave.

Leaving aside the above complications, the Judge had to consider the terms of Section 28 of the Family Law (Scotland) Act 2006.  This provides that if one party to the cohabiting relationship wishes to make a claim for a capital sum or other payment after the relationship has ended, then that claim must be made within a period of 1 year from the date of the cohabitation coming to an end.

Mr Courtney’s representatives stated there were special circumstances that had prevented him from seeking legal advice in the situation. They claimed he hadn’t sought advice because Ms Campbell’s son was ill (and later died) and by the time he did seek advice in August 2014, more than a year had passed since the separation.  This meant that Mr Courtney had lost the opportunity to make a claim for a capital sum in terms of Section 28.

In his judgement, Lord Beckett stated he was satisfied that Mr Courtney and Ms Campbell were cohabitants. He then went on to say that the time limit of one year was intended to discourage stale claims and that by failing to raise the action within that one-year period, Mr Courtney’s representatives could no longer seek a capital sum on the basis of Clause 28. This was fatal to the remainder of the pursuer’s case and Lord Beckett dismissed the action.

Anyone who has been in a cohabiting relationship that has ended and who wishes to make a claim for a capital sum must raise the action within a period of one year from the date the cohabitation comes to an end.

If you find yourself in such a position and wish some advice, please call us on 0141 887 5721 or click here to email us.

Note: the case in point is Igoe and Macari v Campbell [2016] CSOH 136. You can view the Judgement in this case by clicking here.