Section 22 — Application to court by survivor for provision on intestacy

Part of Family Law (Scotland) Bill: Stage 3 – in the Scottish Parliament at 5:15 pm on 15th December 2005.

Alert me about debates like this

Photo of Hugh Henry Hugh Henry Labour 5:15 pm, 15th December 2005

In establishing a right for a cohabitant to apply to the court for a discretionary award when their partner dies intestate, we will introduce a degree of fairness into an unhappy situation, with provisions that are just and equitable. We have tried to ensure that any surviving spouse's or civil partner's position will remain intact and that the total award to a cohabitant will be limited to the amount to which they would have been entitled had they been a spouse or civil partner of the deceased. Beyond that, the courts will be expected to decide what is fair and reasonable in the circumstances of each case, within the rules that are set out in section 22.

The court will first of all refer to the definition of "cohabitant" in section 18. The applicant will have to satisfy the test that is set out there before the court considers the application for an award. The court will then consider the factors that are set out in section 22(3), which include

"the size and nature of the deceased's net intestate estate" as well as

"any benefit received, or to be received" by the surviving cohabitant from the estate and

"the nature and extent of any other rights against, or claims on, the deceased's net intestate estate".

Amendment 47 seeks to introduce an additional factor for the court to consider in determining the award: the length of time that the cohabitants lived together. That displays a wee bit of misunderstanding of the discretion that will be available to the court. Section 18 will determine whether the applicant is eligible to be considered for an award. Once that has been established, the discretion that will be available to the court will relate to the circumstances of the individual estate. Therefore, the court will not carry out an exercise in determining who is more worthy or deserving or whether someone who lived with their partner for 10 years is entitled to more than they would have got if their partner had died six years earlier; instead, the court will examine the size and nature of the estate and the other legitimate claims that can be made on it. A cohabitant who lived with someone for 10 years where the deceased has no surviving spouse or children might get a different outcome from a cohabitant who lived with a partner for 10 years but whose partner remained married and had children with the spouse and/or another previous partner.

Amendment 48 seeks to make matters clear by putting it beyond doubt that the calculation of any children's legal rights should be postponed until the discretionary award that is to be made to the cohabitant has been satisfied. However, that would fetter the discretion of the court in such matters. The issue is more complex than amendment 48 suggests; it is not simply an either/or situation. Among other matters, a child's claim on the estate would be taken into account in the decision on the award. In certain circumstances—for example if the cohabitant was entitled to a large pension settlement from the deceased's estate—the court might wish to set aside a sum to meet the child's legal rights in their entirety before deciding on the award to the cohabitant. In other cases, the circumstances described by the amendment would be appropriate. The matter must be left to the discretion of the court, which will take into account all the facts and circumstances.