The recent decision on cohabitation claims from the Court of Session in the case of Igoe & Macari v Campbell has certainly done enough to send a chill down the spine of family law practitioners.
The case was complex, involving a cohabitation relationship where the parties had separated and legal issues of the timing within which to bring claims for the recovery of money contributed to the home where the couple lived.
It also involved one of the parties dying before the second legal remedy could be sought. Ultimately, this case determined timing is everything in cohabitation claims.
The couple, Mr Courtney and Ms Campbell, began their relationship in 2009. In 2010, Ms Campbell bought a house in Glenrothes in her name only. Mr Courtney paid her a lump sum of half the purchase price, they moved into the house together and lived as cohabitants. Mr Courtney paid a further sum to Ms Campbell some months later when his own house was sold. Ms Campbell worked, Mr Courtney did not.
In the court case, Ms Campbell claimed to have met all of the costs of the household while Mr Courtney made cash payments to Ms Campbell to cover the costs of renovating the house and deployed his joinery skills. Mr Courtney by and large treated Ms Campbell’s property as if it were his own in terms of both effort and contribution.
Their relationship ended in May 2013. The basis for Mr Courtney’s claim was to seek recompense or recognition for his contributions under section 28 of the Family Law (Scotland) Act 2006.
Under section 28, former cohabitants are able to make a claim against their respective cohabitant on the basis of any economic disadvantage sustained from contributions, financial and otherwise, during the period of cohabitation and to the other cohabitant’s economic advantage.
A claim by a former cohabitant whose relationship has ended other than by death must be made within one year of the relationship ending. When Ms Campbell and Mr Courtney’s relationship ended, Ms Campbell’s son fell ill and later passed away. Mr Courtney did not seek legal advice on his rights to make a claim as a former cohabitant immediately, perhaps with regard to Ms Campbell’s circumstances. It was August 2014, 15 months after the separation, that he sought advice.
Having missed the statutory one-year time limit under the 2006 Act, Mr Courtney was still within the five-year time period to make a claim under the remedy of unjustified enrichment.
In a tragic further twist, Mr Courtney passed away before the claim could be raised and it was left to the executors of his estate to raise a claim on this basis.
This claim led to a debate before the court on whether they could rely on the equitable remedy of unjustified enrichment where Mr Courtney had missed the opportunity to make a claim under the 2006 Act.
In his decision, Lord Beckett was clear the answer was no. He relied heavily on the drafting of the 2006 Act to have considered the interplay of the provisions of the Act and the other remedies available. There must be “special and strong circumstances why an equitable remedy should now be open when a statutory remedy was not used timeously”.
One of the reasons Mr Courtney did not pursue the claim at the time of the relationship ending was due to the ill health of Ms Campbell’s son. Furthermore, Mr Courtney passed away in the time between separating from Ms Campbell and raising the unjustified enrichment claim, but the court was not persuaded these circumstances were special or strong enough to allow the unjustified enrichment claim to proceed.
Lord Beckett noted: “Parliament did not provide for any relaxation of the time limit and plainly intended that any action under the  Act would be raised quickly."
This case makes clear that for separating cohabitants there is no fall-back when it comes to making a claim outside of a year.
Jennifer Wilkie is a Senior Associate, Anderson Strathern LLP