Gow v Grant - The Appeal, a help or a hindrance?

Posted On: 02 September 2011

Author: Kirsty Malcolm

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This article has previously appeared in the Family Law Association Bulletin.




Since the introduction of the Family Law (Scotland) Act 2006 on 4th May that year, almost exactly 5 years to the day as I write, solicitors have been at a loss to know how best to advise their clients in relation to claims arising under section 28 of that statute. The fundamental problems arose from matters of interpretation and questions of quantification, and how was it that one was expected to apply the terms of the legislation to the given facts in a case. Other concerns arose over whether one should consider matters in light of s.9(1)(b) of the Family Law (Scotland) Act 1985, where the wording of the provision was almost identical, but clearly that section was dealing with a situation arising from a marriage, within a framework of  achieving fairness based on equal sharing of assets.

Over time, as more parties pursued their cases under s.28 through the courts, there was an expectation that a clear pattern would emerge; a consistency of approach ratified by the courts establishing through precedent the appropriate approach to adopt, and therefore making it easier for those instructed to give clear and accurate advice. However, this was not to be; by March 2011, when the appeal to the Inner House in Gow v Grant was heard there were known to be 6 reported cases at first instance (including Gow v Grant), 3 unreported and only one decision on appeal to the sheriff principal, also unreported.  There was neither consistency in the approach being adopted by the sheriffs, nor in the manner in which cases were being argued.

In reaching her decision at first instance in Gow v Grant, Sheriff Mackie had taken the opportunity to set out what in her view was the correct approach to be adopted when applying the terms of section 28 to any given set of facts. It was agreed between representatives involved in the appeal to the Inner House that this could then be used as a mechanism to open up discussion of the interpretation of the legislation before the Inner House, i.e. had the sheriff gone about it correctly, as well as their having to review the actual decision reached on those facts, and with a view to seeking some overall clarification for the benefit of those working in this area. Unfortunately however that was not to be; the Inner House decided to restrict their deliberations to making two observations on the construction of s.28, the first related to the use to be made of the provisions in the 1985 Act and the second to the perceived objective of s.28 and its limited scope.

The Inner House decision and its impact

If one considers the first point in relation to the application of the provisions from the 1985 Act to the construction of s.28, it seems that the view of the Inner House must be correct in so far as the expression of it goes. Sections 8 – 10 of the 1985 Act are concerned with an entirely different scheme whereby one is seeking to achieve a fair distribution of matrimonial property, and where the underlying principles in s.9 require equality or fairness to be achieved, having regard to the specific facts and circumstances of each case. As noted in their judgement, and as indicated in the various debates and consultations that preceded the enactment of s. 28, the section permits a court to make financial provision for a former cohabitant which is in the nature of compensation for an imbalance of economic advantage or disadvantage. It is an entirely different scheme that is envisaged under the property distribution of the 1985 Act, compared to the compensatory nature of s.28 of the 2006 Act. However, it is suggested the approach of the Inner House does not rule out the use of precedent under the 1985 Act in its entirety especially those cases where there is little or no matrimonial property and where relying on s.9(1)(b).

The Inner House rejects the use of the 1985 Act only in relation to the correct approach to construction (my emphasis) of section 28. It is suggested that this is a narrow limitation and that one should not be entirely precluded from seeking assistance from cases based on s.9(1)(b), specifically when seeking to determine what may be classed or categorised as an economic advantage or disadvantage, with reference to losses in capital, income or earning capacity. It is likely that the Inner House chose to express itself in this way, restricting its rejection of the 1985 Act to matters of construction, due to the points that had been argued on the correct approach to construction at first instance and in a slightly different way on appeal. When the Inner House opinion is considered in light of those arguments, the purpose of making the observations referred to is apparent, and the potential for continued reference to s9(1)(b) precedent garners some support.

(Continued....to read the full article please click on the link at the top of the page)