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International Private Law - cohabitants claim

Stable member David Leighton has appeared for a defender in a deceased cohabitants case in terms of s29 of the Family Law (Scotland) Act 2006. The noteworthy feature of the case was the significant International Private Law dimension.

In the case, Kerr v Mangan & Ors, the deceased and the pursuer had cohabited for about 20 years. By far the greater part of the deceased’s estate was heritable property in Ireland. The second defender, for whom David appeared, argued that, for a variety of reasons, any award should not impinge upon the property in Ireland.

There were three issues of possibly wider interest:

1. Whether the definition of net intestate estate (in section 29), from which any award is made, should included heritable property abroad.

2. Whether the phrase “the amount to which the survivor would have been entitled had the survivor been the spouse or civil partner of the deceased” in s29(4), referred only to Scots internal law or whether a spouses entitlement under other systems could be taken into account. This provides a maximum figure for any award that a court may make.

3. What the level of any award should be within the available range.

The sheriff decided in favour of the pursuer that net intestate estate included the deceased’s estate of whatever sort and wherever situated.

The sheriff was persuaded however that the surviving spouse figure should be calculated solely with reference to Scots internal law, substantially reducing the maximum award that could be made in terms of s29(4).

Having regard to the considerable length of the parties relationship, and the relatively small proportion of the total estate that the maximum award represented, the sheriff decided to make the maximum award that he was able to in favour of the pursuer.

The opinion is not available at the moment from the scotcourts website. A copy is available on request from  clerks.hastie@advocates.org.uk.