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Cohabitants, unjustified enrichment and law reform (Part 1)

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Original languageEnglish
Article number1
Pages (from-to)1-7
Number of pages6
JournalGreens Family Law Bulletin
Issue number160
Publication statusPublished - 1 Jul 2019

Abstract

Not much more than a decade after the passage of the cohabitation provisions of the Family Law (Scotland) Act 2006, their possible reform is in the air. In its Tenth Programme of Law Reform, published in February 2018, the Scottish Law Commission indicated that one possible area of work was financial provision upon the breakdown of a cohabitation relationship under section 28 of the 2006 Act. In March 2019 the Law Society of Scotland published a report recommending that common law unjustified enrichment claims between former cohabitants should be allowed despite the expiry of the one-year time limit for a claim under section 28 of the 2006 Act. This would reverse the result of a controversial decision in 2016, Courtney’s Executors v Campbell 2017 SCLR 387. Earlier, in October 2018, the Scottish Government published its response to the results of a consultation on Scottish Law Commission recommendations (made in 2009) to reform cohabitants’ succession rights as conferred by section 29 of the 2006 Act. In all this possible law reform activity the Law Society report alone makes reference to the issues about the relationship between the statutory provisions and the law of unjustified enrichment raised by Courtney’s Executors v Campbell. The consultees on whose views the report was based made some interesting remarks about unjustified enrichment in particular. One said that ‘unjustified enrichment is complicated and hardly ever successful’; another felt that ‘whether this remedy should remain in the longer term should be considered as part of a wider review of the law on cohabitation’. This present two-part paper suggests that, while the second of these views is correct, the first one is not. Unjustified enrichment is less complicated than it looks, and much less so than the current statutory provisions on cohabitation. Further, enrichment claims are more often successful than not, at least to judge from reported case law. This paper does not argue that unjustified enrichment can do all the necessary work for cohabitants’ rights. That is clearly not so. But it will be suggested that it can play a useful role alongside a reformed statutory regime, and that that role should not be constrained by mistaken ideas about the supposed ‘subsidiarity’ of unjustified enrichment.

ID: 98145424