Sheriff Appeal Court rules applications for cohabitant’s award must be served on defender within one-year statutory period to be timeous

About this case:

• Citation:
  [2023] SAC (Civ) 2
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Appeal Sheriff T McCartney

Pursuer Joanna Knight had sought decree of payment of a capital sum from defender Barrie Henderson as a cohabitant’s award under section 28 of the Family Law (Scotland) Act 2006. The appellant argued that the sheriff had erred in holding that the application was made in time and had misinterpreted the provisions of the Act.

The appeal was heard by Sheriff Principal Marysia Lewis alongside Appeal Sheriffs Alistair MacFadyen and Thomas McCartney. Malcolm KC appeared for the pursuer and Hayhow KC for the defender and appellant.

Illogical result

Under section 28(8) of the 2006 Act, any application made under section 28 for a court order on the application of a cohabitant must be made no later than one year after the date on which the cohabitants ceased to cohabit. The pursuer’s initial writ was lodged at the sheriff court within the one-year period but there was a dispute as to whether it was served on the defender in that time.

Having heard submissions, the sheriff found that the pursuer’s application was made timeously. She reasoned that in using the word ‘application’ within the Act, Parliament meant something different from the time of commencement of the action. She further opined that there was a fundamental difference between the making of an application in order to create an otherwise non-existing right and commencing an action in pursuance of a pre-existing right.

It was submitted for the appellant that the distinction made by the sheriff was an incorrect approach that led her to dismiss consideration of the fact that the jurisdiction of the court was only engaged once an action had been served. The purpose of introducing a time limit for making claims was to avoid stale claims, and in order to allow a former cohabitant to know where they stand. It was not possible to give effect to that purpose if the term ‘application’ was interpreted as meaning the date upon which an initiating document is lodged with the court.

Counsel for the appellant further argued that if the interpretation adopted by the sheriff was applied, a situation would be created whereby the nature of the proceedings would be an ordinary action where the time bar would be deemed to have been interrupted without the other party to the proceedings being aware of their existence. Such would be an irrational or illogical result and therefore one that courts ought to generally avoid as a matter of statutory construction.

Far from unique

Delivering the opinion of the court, Appeal Sheriff McCartney began by observing: “A cohabitant’s entitlement to claim for financial provision following the end of cohabitation was created by section 28 of the 2006 Act. The entitlement is conferred by section 28(2). It is not created by the application. The learned sheriff has erred in finding that by making the application in terms of section 28(2) the applicant is, in effect, creating the right upon which she can then proceed.”

On whether the use of the word “application” was significant, he said: “The sheriff attaches weight to the use of the words ‘application’ and ‘applicant’ in section 28. However section 28 is far from unique in that choice of wording. In section 11(3) of the Children (Scotland) Act 1995 ‘application for an order is made’, in the Matrimonial Homes (Family Protection) (Scotland) Act 1981 section 3 one can ‘apply to the court for an order’ and in section 8 of the Family Law (Scotland) Act 1985 either party ‘may apply to the court for one or more of the following orders’ for financial provision on divorce.”

He went on to say: “All such actions proceed as family actions under the ordinary cause procedure. The learned sheriff errs in attaching special significance to the use of these words and concluding that in selecting the word ‘application’ Parliament meant something different from the time of commencement of an ordinary action.”

Appeal Sheriff McCartney concluded: “We conclude that compliance with the provision that an application for financial provision by a cohabitant has to be made no later than one year after the day on which the parties cease to cohabit requires service of the initial writ on the defender within that period. Having concluded thus, there remains a factual dispute in this case as to whether valid service was effected within one year after the cessation of cohabitation. That factual dispute will require to be determined at first instance.”

The Sheriff Appeal Court therefore recalled the sheriff’s interlocutor and remitted the case to her to proceed as accords.