Sheriff Appeal Court refuses appeal by former cohabitee seeking financial award 

George Duthie, the pursuer and appellant, lived with Teresa Findlay as a cohabiting couple for 15 years. He argued that the sheriff misdirected herself in law in respect of a statutory test under Section 28 of the Family Law (Scotland) Act 2006. 

The appeal was heard by Sheriff Principal Pyle, Sheriff Principal Turnbull, and Appeal Sheriff McCulloch. 

Demonstrating his commitment 

The sheriff court heard detailed evidence of the couple’s financial affairs. At the beginning of the cohabitation, the parties resided in a house solely owned by the appellant. They later purchased another house in Morningfield Mews, Aberdeen, for £287,000. The purchase was in both their names but solely funded by the appellant. 

The appellant also solely funded the renovation of the property and the cost of furnishings at a cost of around £110,000. The sheriff explicitly found that the appellant had done so to “demonstrate his commitment to the relationship” and provide the respondent with security. He was consistently the higher earner during the relationship and remained in full-time pensionable employment. 

The respondent received around £150,000 in September 2007 from her ex-husband for her share of the matrimonial home. She also retained a pension, shareholdings, and an investment. At the start of the relationship she was in full-time employment but subsequently agreed to work part-time and later not at all when the appellant said he could and would support them both. 

The sheriff found in fact and law that the respondent had derived economic advantage from the contributions made by the appellant to her acquisition of the one-half share in the Aberdeen property, her ownership of an Audi car, and financial support given to her by the appellant.  

The respondent was also found to have suffered economic disadvantage in the interests of the appellant due to her loss of earnings. These factors were said to offset each other in determining economic advantage in applying the Section 28 test to determine whether the court could make an award in favour of the pursuer. Ultimately, the sheriff did not make an award in favour of the appellant. 

On appeal, it was submitted for the appellant that the sheriff misdirected herself in that the Section 28 test did not require consideration of factors to rebut a presumption that at the end of the cohabitation each party will retain their own property. Further, she had erred by taking into account the positions of the parties at each end of the cohabitation without giving due consideration to the extent of contributions made during it. 

Broad axe approach 

The opinion of the court was given by Sheriff Principal Pyle. Regarding the presumption, he said: “His submission has no merit. Implicit in the submission was a criticism of a passage in Lord Hope’s judgment in Gow v Grant (2012) in which he makes reference to the rebuttable presumption. Instead, counsel submitted that the correct test was fairness. But that is to ignore the context in which Lord Hope made reference to a presumption.” 

He continued: “The purpose was to contrast the provisions for cohabiting couples with the provisions on divorce where there is a rebuttable presumption that property will be shared fairly if it is shared equally. That comment was not seeking to dilute or add an additional test to the basic principle of fairness enunciated by Lord Hope. Indeed, when one considers the sheriff’s judgment, it is perfectly clear that throughout she was applying that principle.” 

On whether the sheriff had erred in only regarding the parties’ positions at the beginning and end of the cohabitation, he said: “In essence, the criticism was that having calculated the economic advantages and disadvantages of both parties, in exercising her discretion on the issue of fairness the sheriff should not revisit that calculation. If that were the sheriff’s position there might well have been a basis for criticism, but looking at the sheriff’s judgment as a whole we do not consider that she has proceeded in the way counsel described.” 

Of the sheriff’s reasoning generally, which was also critiqued in the appeal grounds, he said: “The sheriff was well entitled to have regard to the nature of the relationship and the respondent’s role in a non-economic sense. The reason for the decision to purchase the Morningfield Mews property (to provide the respondent with a sense of security in the relationship) was not just for her benefit but was also for the benefit of the appellant.” 

He continued: “While it is true that there was no finding in fact that [the respondent] could not obtain a mortgage, the sheriff was in reality just making a general point that given [her] age (64 years) and her financial circumstances it was reasonable to surmise that she might have difficulty in purchasing another property, as against the potential insecurity of entering a lease.” 

He concluded: “The emphasis on ‘fairness’ necessarily means that the sheriff is entitled to take a broad axe approach. The sheriff in this case has carefully assessed all the evidence and has reached a conclusion which was within the band of reasonable decisions which were open to her.” 

For these reasons, the appeal was refused.