If you have separated from your partner that you co-habited with then there is a key, recently reported Sheriff Appeal Court decision that you should be aware of. Currently the Family Law Act 2006 provides for financial claims following the end of a cohabiting relationship. These claims are known as Section 28 claims.
The claim is made in Court if you cannot negotiate it with your ex. The Act sets out all claims should be made within one year of the cohabiting relationship ending. There has for some time between some practical, intellectual and legal debate regarding when that year ends in terms of the deadline the Act anticipated. We now have a definitive answer from the Sheriff Appeal Court on that point.
This Appeal was heard by Sheriff Principal Marysia Lewis alongside Appeal Sheriff’s Alistair Macfadyen and Thomas McCartney. The Appeal Court determined that compliance with the Act 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 ceased to cohabit requires service of the Initial Writ (the Court documents) on the Defender (the other party) within that period.
What this means in practice is, if instructing a solicitor, that solicitor has to have time to take your instructions, draft your court papers get them to court to be what we call warranted and then served on your ex cohabitant. Once papers are drafted ordinarily the court take between 7-10 days to warrant an application (this can depend from Sheriff Court to Sheriff Court), and then service takes place after that.
The message from this news post is, do not delay or hesitate to take advice in relation to potential financial claims you have against your ex cohabitant following the breakdown of that relationship. The clock so to speak ticks from the date you separate and if you need to go to court to make that claim your solicitor has to get the application drafted with the court, warranted and served on your ex within one year of that date.
If you need advice following the breakdown of your cohabiting relationship, please get in touch with us.
Johnson Legal Family Law has also recently set up an Anonymous Q&A platform to open up our specialised legal advice to anyone who has a family law related question. All questions are 100% anonymous and we will be posting the responses to these questions on our social channels on an ongoing basis.
Nyree Conway, Senior Associate of Johnson Legal Family Law
