If you’ve recently ended a relationship and lived together without being married or in a civil partnership, you may have the right to make a cohabitation claim under Section 28 of the Family Law (Scotland) Act 2006.

At XK Family Law Solicitors, we help clients in Aberdeen and across Scotland understand their rights and options when cohabiting relationships break down.

What Is the Purpose of Section 28?

Section 28 allows a former cohabitant to claim financial compensation from their ex-partner following separation, particularly where one person has suffered a financial loss or the other gained an economic advantage.

Who Can Make a Claim?

To be eligible, you must be legally recognised as a “cohabitant”, meaning:

• A man and woman who lived together as if married, or
• Two people of the same sex who lived together as if in a civil partnership

How Does the Court Decide If You Were Cohabiting?

The court looks at:

• How long the couple lived together.
• The nature of their relationship (e.g. shared home, social life, commitment).
• Financial arrangements, such as joint accounts or shared bills.

🔍 This part of the law has been criticised for being vague, making outcomes hard to predict.

⚠️ Time Limit to Claim

There is a strict 1-year time limit to make a claim under Section 28:

• The claim must be lodged, warranted and served within one year of the date a couple stopped living together.
• If this deadline is missed, you may lose the right to claim entirely.

Other Legal Options If Time Runs Out

If the one-year period has expired, you may still have alternatives:

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1. Unjustified Enrichment

• Applies when one person has been unfairly enriched at the other’s expense.
• Previously thought to be excluded by Section 28, but the case of Pert v McCaffrey (2020) suggests it may still be valid.

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2. Division and Sale of Property

• If the couple owned property together, one party can ask the court to order a sale.
• Courts aim for fairness but usually uphold the right to sell jointly owned assets.

What Can the Court Award?

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Without Children:

• A one-off capital payment from one ex-partner to the other.

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With Children:

• In addition, a payment for the added cost of caring for children after separation.

💡 Note: Ongoing maintenance payments are not covered by cohabitation law.

How Does the Court Decide on Payments?

The court uses a fairness test based on:

1. Economic Advantage

• Has one partner gained financially during the relationship?

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2. Economic Disadvantage

• Has the other suffered financially or missed out on opportunities?

The court will assess whether:

• The advantage of one party is offset by the loss of the other.
• Contributions include unpaid work such as childcare and housework.

Can Payments Be Made in Instalments?

Yes. The court can:

• Order a capital sum to be paid in full; or
• Allow instalment payments over time or on a specified future date.

📚 Case Law Highlights

Section 28 has proven difficult to interpret in practice. Key court cases include:

Smith-Milne v Langler (2013)

• Courts struggle to calculate fair compensation.

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Saunders v Martin (2014)

• Once financial loss/gain is shown, courts have wide discretion.

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HAT v CW (2020)

• Courts should compare both parties’ positions at the start and end of the relationship and evaluate fairness.

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Duthie v Findlay (2020)

• Future financial outlook may be relevant to court decisions.

Practical Advice for Making a Claim

• Be specific about the gain or loss you’re claiming.
• It must be directly linked to the relationship.
• Consider whether one benefit cancels out another (offsetting).

Example Situations

• Living rent-free vs. renovations: If one partner lived rent-free but improved the house, the court decides if those balance each other.
• Missed opportunities: If the couple planned to buy a home but didn’t, there’s likely no compensation.
• Proof of property value: If claiming for a share in a home, you must provide evidence of past and current market value.

Final Thoughts

Section 28 aims to provide a fair solution when cohabiting relationships break down, but it’s a complex and uncertain area of law. Courts must balance gain and loss with fairness in mind, but the outcomes are unpredictable.

At XK Family Law Solicitors, we provide clear legal guidance and representation for those facing difficult decisions after separation. If you’re considering a cohabitation claim in Scotland, acting quickly is critical.

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