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 the one year time limit from 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. Mr Courtney’s representatives claimed it was the intention that he and Ms Campbell would live together in that property. On 14 May 2010, Mr Courtney paid £50,000 to Ms Campbell. He paid her another £50,000 on 28 February 2011. Ms Campbell carried out further renovations whilst they were living together. Mr Courtney made further payments to her in relation to these. Their relationship came to an end in May 2013 and Mr Courtney moved out.
There are further complications in this case. The action was raised by Mr Courtney’s executors because Mr Courtney had died. The basis of the action was for unjustified enrichment rather than a straight forward claim for a capital sum because a strict one year time limit had been missed. Ms Campbell claimed that Mr Courtney knew that the house was in her name alone. She said that Mr Courtney 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.
What the law says
Leaving aside the above complications, the Judge had to consider the terms of Section 28 of the Family Law (Scotland) Act 2006. Clause 28 states the party making a claim for a capital sum must make the claim within a period of one 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). He sought advice in August 2014 – more than a year after the separation. This meant that Mr Courtney had lost the opportunity to make a claim for a capital sum in terms of Section 28.
Lord Beckett stated in his judgement that he was satisfied that Mr Courtney and Ms Campbell were cohabitants. The one year time limit was intended to discourage stale claims. Mr Courtney’s representatives could no longer seek a capital sum on the basis of Clause 28 because they had failed to raise the action within that one year time limit. This was fatal to the remainder of the pursuer’s case and, accordingly, 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.
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Note: the case in point is Igoe and Macari v Campbell  CSOH 136. You can view the Judgement in this case by clicking here.