CHAPTER I

INTRODUCTION
A. INTRODUCTION
The private international law is actually a same legal theory with
private law or civil law, the only difference is the foreign element contained in
that matter. This case is private international law in the Scots law system that
has Irish matter as the foreign element. The case tells about the cohabitation
and the one of the cohabitant died and left the intestate estate or heritable
property and one of those is heritable property in Ireland.
In Scotland, cohabitation is the usual thing, that is why a lot of people
choose to live together in long-term or even permanently and have sexual
relationship without any civil partnership and marriage. The law that regulates
about cohabitation came in 2006 in the Family Law (Scotland) Act 2006,
because before of that there was no clear legal certainty of the status of
cohabitation.
The problem arose when the deceased left intestate estate, kin, and the
former cohabitant. Where should they dispose that intestate estate? The
former cohabitant? Or the kin? Since the former cohabitant is not the same
with former spouse. And also the problem is getting difficult when one the
heritable property was not in Scotland or UK location, but in Ireland. That is
why some kind of problem will arise so many national regulations and
principle of private international law to be used.
B. PRIVATE INTERNATIONAL LAW
Some states and people usually prefer using choice of law term instead
rather than private international law. But both of them refer to the same
meaning, namely elations across different legal jurisdictions between persons,
and sometimes also companies, corporations and other legal entities. More
specifically, it refers to that part of the law that is administered between
private citizens of different countries or is concerned with the definition,
regulation, and enforcement of rights in situations where both the person in
whom the right inheres and the person upon whom the obligation rests are
private citizens of different nations. It is a set of rules and regulations that are
established or agreed upon by citizens of different nations who privately enter

into a transaction and that will govern in the event of a dispute. In this respect,
private International Law differs from public international law, which is the set
of rules entered into by the governments of various countries that determine
the rights and regulate the intercourse of independent nations.
C. SCOTS LAW
The Scottish legal system, or usually only mentioned Scots Law, is the
legal system that uses the English common law legal system, because it is part
of the UK that most of them are using it. But, the Scots law also contains civil
law legal system influenced by Roman law. Since, the Scotland itself is a
member of a third family, known as a mixed system, because they are
influenced by both civil law and common law and have characteristics of both
approaches.1
The civil law influence was origins when Scotland and England were
completely separate countries. During this time, Scotland looked to European
systems when developing their own laws, particularly to France, which was
heavily influenced by Roman law. The next stage came after the Union of the
Crowns in 1603 and the Union of the Parliaments in 1707. From here, the
Anglo influence became evident in Scots law. So, while modern Scots law has
evolved its own rules, these can be traced back to common roots with the
English common law legal system and further back to ancient Rome.2
The Family law in Scotland, and the Scots Family law can be divided
into: Marriage and Civil Partnership, Divorce and Dissolution, Cohabitation,
and Children. This case talks about Cohabitation topic, since there was seizure
of property between the former cohabitant and of the deceased, and the kin of
the deceased.3
According to article 25 of Family Law (Scotland) Act 2006, cohabitant
is a man and a woman who are (or were) living together as if they were
husband and wife, or two persons of the same sex who are (or were) living
together as if they were civil partners. But, according to the Scottish
Government it is a common misunderstanding in Scotland that a couple will
1 The Student Lawyer at http://thestudentlawyer.com/2013/06/17/the-scottish-legalsystem-in-a-nutshell/, 2013
2 Ibid

3 Wikipedia at http://en.wikipedia.org/wiki/Scots_family_law, 2014

2

have established a common-law marriage after having lived together for a

certain period of time. The last form of irregular marriage, marriage by
cohabitation with habit and repute, was abolished from 4 May 2006 and
required more than just living together. One of the confusions might be caused
by the continued existence of this type of common law marriage in a number
of U.S. states.4
The United Kingdom does not have a single unified judicial system,
from England and Wales have one system, Scotland another, and Northern
Ireland a third. Since the Scots court system is influenced by English common
law as well, the courts are another source of law in Scotland and the doctrine
of judicial precedent operates within the hierarchy of the courts. Decisions of
the Supreme Court (or House of Lords) in Scottish appeals bind all lower
Scottish courts. Decisions of the Inner House of the Court of Session are also
binding but those of single judges in the Outer House, Sheriffs or Justices of
the Peace, are not. 5
The judiciary in Scotland is led by the Lord President who acts as Lord
President of the Court of Session and Lord Justice General of the High Court
of the Justiciary. His deputy is the Lord Justice Clerk. Scottish judges are
appointed by the Queen on the recommendation of the First Minister and
based on the advice of the Judicial Appointments Board for Scotland.6
D. CONFLICT OF LAW REGARDING COHABITATION IN SCOTLAND
Prior to the 2006 Act, there was no single body of rules in Scots
domestic law governing the definition, constitution, and proprietary and
other consequences, of cohabitation, although particular claims by one
partner of a cohabiting couple were, on occasion, recognized. So, it does
not need any marriage between the couple but they can maintain to live
together in long-term, or even permanently, and have sexually relationship.
Cohabitation is intended to mean relationships not formalized by legal
ceremony or registration process, but nevertheless attracting, to a greater
4 Ibid
5 The Student Lawyer at http://thestudentlawyer.com/2013/06/17/the-scottish-legalsystem-in-a-nutshell/, 2013
6 Where does Scots Law come from? at
http://scotland.shelter.org.uk/get_advice/advice_topics/complaints_and_court_action/structu
re_of_the_scottish_legal_system/where_does_scots_law_come_from, 2014

or lesser extent as the case may be, financial/proprietary/succession

consequences which arise by operation of law where the relationship in
question satisfies the definition of cohabitation laid down by the legal
system purporting to regulate that relationship. Of such a type is the
cohabitation relationship to which are attached property and other
consequences by the Family Law (Scotland) Act 2006, sections 25 30.7
The amendments of this new Family Law act 2006 in Scotland create
the conflict of law. In general, sections 25 30 make no reference to the
conflict of laws, except that for application to be made under section 29
the deceased cohabitant must have been domiciled at death in Scotland. It
is implicit that application may be made for the rights provided for in the
Act whenever Scots law is the lex causae.
But, it is not clear in what circumstances the Scots courts have
jurisdiction to rule on such matters provided for by the 2006 Act; or,
regarding choice of law. The law of the domicile during cohabitation might
suggest itself, both as to jurisdiction and choice of law, but there is a strong
argument for application, by the court of the country in which the parties
cohabit, of the law of that country, to determine the consequences of
cessation of de facto cohabitation (and presumably that law also would
determine when, and in circumstances, such cohabitation is deemed to
have ceased).8

7 Electronic Journal of Comparative Law at www.ejcl.org/103/art103-5.doc, 2006, pp. 13

8 Ibid, pp. 14
4

CHAPTER II
SUMMARY OF THE CASE
This case tells about a Family Law matter as its main problem, more
specifically about the cohabitation. The claimant is Margaret Rose Kerr, who was a
former cohabitant of the deceased Anthony Mangan. They had lived together for 22
years, until Anthony died on 10 August 2007. Both of them are Scottish citizenship,
but they resided together in Perth. The defendants are Anthonys kin, namely Paul
Mangan, Charles Mangan, Anthony Joesph Mangan, Mary Theresa Mangan, and
Elizabeth Gallacher. Anthonys death was domiciled in Scotland and he died intestate,
and this is where the problem arose.
Before died, Anthony owned heritable property in County Mayo in the
Republic of Ireland having a value in January 2009 in amount of 200.000 Euro. He
also owned moveable property partly in Scotland and partly in Ireland comprising an
account with the Royal Bank of Scotland with a credit balance of 8552,05 Euro and
an account with Ulster Bank with a credit balance of 4708,16 Euro. There were
funeral expenses of 6052,23 Euro, a capital acquisition tax liability in Ireland
amounting to 23.067,23 and interest (which continues to accrue) on a further tax
liability amounting to 9899 Euro. Also, there was further debt of 272.05 Euro and fees
for administering the estate in Ireland amounting to 5383,42 Euro.
The claimant claimed to have the intestate estate of Anthony, by relying on
article 29 of Family Law (Scotland) Act 2006, used the decree cognitionis causa
tantum, meaning an action raised by creditor of a deceased debtor for purpose of
constituting his or her debt against the estate. The claimant thought that she deserved
to get Anthonys intestate estate rather his kin, therefore she claimed to get Anthonys
all property.
Finally, the sheriff court decided that the claimant only has her right to receive
5502 Euro from the defendants, but she was not allowed to obtain net intestate estate,
or heritable property, in Ireland. The court said that the claimants prior rights would
have been calculated by reference to the estate excluding the heritable property in
Ireland. So, the sheriff concluded that the claimants claim to prior rights would ot
have exceeded 5502 Euro.

CHAPTER III
ANALYSIS
A. FACTS OF THE JUDGEMENT
The claimant, Margaret Rose Kerr, is Scottish citizenship and the
former cohabitant of the deceased, Anthony Mangan. She claimed to

get intestate estate of the deceased.

The deceased, Anthony Mangan, was Scottish citizenship. He died on
10 August 2007. Prior his death, he and the claimant resided together
in Perth, and at his death the deceased was domiciled in Scotland. The
deceased owned heritable property in County Mayo in the Republic of

Ireland, moveable property in Scotland and Ireland.

There were funeral expenses, a capital acquisition tax liability, in

Ireland, and there was further debt of the deceased.

The defendants are the deceaseds kin, namely Paul Mangan, Charles
Mangan, Anthony Joseph Mangan, Mary Theresa Mangan, and

Elizabeth Gallacher.
The sheriff court only made an order to the defendant to pay 5502 Euro
out of the intestate estate to the claimant, but repelling all of the other
claim regarding total intestate estates claim of the deceased.

B. PRINCIPLES OF PRIVATE INTERNATIONAL LAW IN THIS CASE

Choice of Law
The body of rules indicating which territorial system of law should be
chosen for the adjudication of a case having contacts with more than

one territory.
Renvoi
Doctrine is whereby the courts of one country apply the law of another

country in resolving a legal dispute.

Lex fori
The law of the forum or court governs matters of procedure, the mode

of trial, evidence, remedies.

Lex causae
The system of law (usually foreign) is applicable to the case in dispute;

substantive rules.
Lex domicilii

The law of the country of domicile determines such matters as capacity

to make a will, the validity of a will; consent to marriage, marriage

contract.
Lex situs or lex rei sitae
The law of the place of situation of the property forming the subject
matter of the dispute (lex situs); The law of the place where an object

is situated; governs the right to possession of immovable.

Cognitionis causa tantum
An action raised by creditor of a deceased debtor for purpose of
constituting his or her debt against the estate.

C. RELATED LAWS AND REGULATIONS

Family Law (Scotland) Act 2006
o Article 25, Meaning of cohabitant in sections 26 to 29
1. In sections 26 to 29, cohabitant means either member
of a couple consisting of:
a. a man and a woman who are (or were) living
together as if they were husband and wife; or
b. two persons of the same sex who are (or were)
living together as if they were civil partners.
2. In determining for the purposes of any of sections 26 to
29 whether a person (A) is a cohabitant of another
person (B), the court shall have regard to:
a. the length of the period during which A and B
have been living together (or lived together);
b. the nature of their relationship during that
period; and
c. the nature

and

extent

of

any

financial

arrangements subsisting, or which subsisted,

during that period.
3. In subsection (2) and section 28, court means Court of
Session or sheriff.
o Article 26, Rights in certain household goods
1. Subsection (2) applies where any question arises
(whether during or after the cohabitation) as to the
respective rights of ownership of cohabitants in any
household goods.
2. It shall be presumed that each cohabitant has a right to
an equal share in household goods acquired (other than

by gift or succession from a third party) during the

period of cohabitation.
3. The presumption in subsection (2) shall be rebuttable.
4. In this section, household goods means any goods
(including decorative or ornamental goods) kept or used
at any time during the cohabitation in any residence in
which the cohabitants are (or were) cohabiting for their
joint domestic purposes; but does not include:
a. Money;
b. Securities;
c. Any motor car, caravan or other road vehicle; or
d. Any domestic animal
o Article 27, Rights in certain money and property
1. Subsection (2) applies where, in relation to cohabitants,
any question arises (whether during or after the
cohabitation) as to the right of a cohabitant to:
a. money derived from any allowance made by
either cohabitant for their joint household
expenses or for similar purposes; or
b. any property acquired out of such money.
2. Subject to any agreement between the cohabitants to the
contrary, the money or property shall be treated as
belonging to each cohabitant in equal shares.
3. In this section property does not include a residence
used by the cohabitants as the sole or main residence in
which they live (or lived) together.
o Article 29, Application to court by survivor for provision on
intestacy
1. This section applies where:
a. a cohabitant (the deceased) dies intestate; and
b. immediately before the death the deceased was

i. domiciled in Scotland; and

ii. cohabiting with another cohabitant (the
survivor).
2. Subject to subsection (4), on the application of the
survivor, the court may
a. after having regard to the matters mentioned in
subsection (3), make an order

i. for payment to the survivor out of the

deceaseds net intestate estate of a capital
sum of such amount as may be specified
in the order;
ii. for transfer to the survivor of such
property (whether heritable or moveable)
from that estate as may be so specified;
b. make such interim order as it thinks fit.
3. Those matters are
a. the size and nature of the deceaseds net intestate
estate;
b. any benefit received, or to be received, by the
survivor
i. on, or in consequence of, the deceaseds
death; and
ii. from somewhere

other

than

the

deceaseds net intestate estate;

c. the nature and extent of any other rights against,
or claims on, the deceaseds net intestate estate;
and
d. any other matter the court considers appropriate.
4. An order or interim order under subsection (2) shall not
have the effect of awarding to the survivor an amount
which would exceed the amount to which the survivor
would have been entitled had the survivor been the
spouse or civil partner of the deceased.
5. An application under this section may be made to:
a. the Court of Session;
b. a sheriff in the sheriffdom in which the deceased
was habitually resident at the date of death;
if at the date of death it is uncertain in which
sheriffdom the deceased was habitually resident,
the sheriff at Edinburgh.
6. Any application under this section shall be made before
the expiry of the period of 6 months beginning with the
day on which the deceased died.
7. In making an order under paragraph (a)(i) of subsection
(2), the court may specify that the capital sum shall be
payable:

a. on such date as may be specified;

b. in instalments.
8. In making an order under paragraph (a)(ii) of subsection
(2), the court may specify that the transfer shall be
effective on such date as may be specified.
9. If the court makes an order in accordance with
subsection (7), it may, on an application by any party
having an interest, vary the date or method of payment
of the capital sum.
10. In this section intestate shall be construed in
accordance with section 36(1) of the Succession
(Scotland) Act 1964 (c.41); legal rights has the
meaning given by section 36(1) of the Succession
(Scotland) Act 1964 (c.41); net intestate estate means
so much of the intestate estate as remains after
provision for the satisfaction of:
a. inheritance tax;
b. other liabilities of the estate having priority over
legal rights and the prior rights of a surviving
spouse or surviving civil partner; and
c. the legal rights, and the prior rights, of any
surviving spouse or surviving civil partner; and
prior rights has the meaning given by section
36(1) of the Succession (Scotland) Act 1964
(c.41).
Succession (Scotland) Act 2006
o Article 2, Rights of succession to intestate estate
1. Subject to the following provisions of this Part of this
Act
a. where an intestate is survived by children, they
shall have right to the whole of the intestate
estate;
b. where an intestate is survived by either of, or
both, his parents and is also survived by brothers
or sisters, but is not survived by any prior
relative, the surviving parent or parents shall
have right to one half of the intestate estate and

10

the surviving brothers and sisters to the other

half thereof;
c. where an intestate is survived by brothers or
sisters, but is not survived by any prior relative,
the surviving brothers and sisters shall have
right to the whole of the intestate estate;
d. where an intestate is survived by either of, or
both, his parents, but is not survived by any
prior relative, the surviving parent or parents
shall have right to the whole of the intestate
estate;
e. (e)where an intestate is survived by a husband or
a wife, but is not survived by any prior relative,
the surviving spouse shall have right to the
whole of the intestate estate;
f. where an intestate is survived by uncles or aunts
(being brothers or sisters of either parent of the
intestate), but is not survived by any prior
relative, the surviving uncles and aunts shall
have right to the whole of the intestate estate;
g. where an intestate is survived by a grandparent
or grandparents (being a parent or parents of
either parent of the intestate), but is not survived
by any prior relative, the surviving grandparent
or grandparents shall have right to the whole of
the intestate estate;
h. where an intestate is survived by brothers or
sisters of any of his grandparents (being a parent
or parents of either parent of the intestate), but is
not survived by any prior relative, those
surviving brothers and sisters shall have right to
the whole of the intestate estate;
i. where an intestate is not survived by any prior
relative, the ancestors of the intestate (being
remoter

than

grandparents)

generation

by

generation successively, without distinction

11

between the paternal and maternal lines, shall

have right to the whole of the intestate estate; so
however

that,

failing

ancestors

of

any

generation, the brothers and sisters of any of

those ancestors shall have right thereto before
ancestors of the next more remote generation.
2. References in the foregoing subsection to brothers or
sisters include respectively brothers and sisters of the
half blood as well as of the whole blood; and in the said
subsection prior relative, in relation to any class of
person mentioned in any paragraph of that subsection,
means a person of any other class who, if he had
survived the intestate, would have had right to the
intestate estate or any of it by virtue of an earlier
paragraph of that subsection or by virtue of any such
paragraph and section 5 of this Act.
D. ISSUES
Does the claimant have her right to get the intestate estate of the

deceased?
Is property outside the Scotland included in the intestate estate under
the Family Law (Scotland) 2006?

E. ANALYSIS OF THE CASE

The cohabitation was first appeared under the Scots law in Family Law
(2006) Act 2006. Cohabitation allows the couple to live together, have
relationship in long-term or even permanently without marriage or civil
partnership. In this case, the claimant was former cohabitant of the deceased.
They had lived for 22 years without marriage, until the deceased met his
demise on 2007. But, upon his death, the deceased was domiciled in Scotland
and he left a lot of intestate estate, including heritable property in Ireland that
could create foreign element in this case. The claim
Therefore, the claimant started to raise a claim to have the intestate
estate of the deceased against the defendants, that are the deceaseds kin, by
relying on article 29 of Family Law (Scotland) Act 2006. She claimed that she
deserved to get the intestate of estate, if the deceased dies intestate, and before

12

his death the deceased was domiciled in Scotland. She relied the decree of
cognitionis causa tantum, means the creditor raises a claim to obtain the
intestate estate of the deceased debtor.
Actually, the article 29 of the Family Law already contains principle of
foreign element, like in this case, namely lex causae. Article 29 explains that
the deceased cohabitant must have been domiciled at death in Scotland. It
explains that application may be made for the rights provided for in the Family
Law whenever Scots law is the lex causae. But, it is not really clear in what
circumstances the Scots courts have jurisdiction to rule on such matters
provided for by the 2006 Act; or, regarding choice of law. But it could be
interpreted that the court of the country in which the parties cohabit, of the law
of that country, to determine the consequences of cessation of de facto
cohabitation, in this case is Scotland.
It is unclear whether this application may be made for the rights
provided for in the Family Law whenever Scots law is the lex causae. But the
Family Law would be the lex causae in relation to rights arising during the
cohabitation where the cohabitation occurs/occurred in Scotland. It is clear,
however, that in respect of the rights of the survivor on the death intestate of
the predeceased, Scots law, if it is the lex domicilii, must be the lex causae.
The sheriff court, in its judgment, only made an order for the defendant
to pay capital sum of 5502 Euro, but repelling all of other including the
heritable property in Ireland. Because the court used the principle of lex situs
or lex rei sitae, that means the principle where the place of situation of the
property forming the subject matter of the dispute, or the principle of the place
where an object is situated; governs the right to possession of immovable.
Since the location of the heritable property was in Ireland, then the
meaning of article 29 of Family Law only applies to the heritable property in
Scotland. The heritable property in Ireland, should be regulated in Irish law as
well, and the Scots law has no jurisdiction over that property, because it is
outside the jurisdiction of Scotland. Perhaps, the claimant just could raise a
claim to obtain that heritable property in Ireland by bringing this case to Irish
court. So, the claimant only had some part of the intestate estate of the
deceased. While the heritable property in Ireland could not be touched by
Scots law or even Scots private international law. Actually, the claimant could
use the choice of law of Ireland instead rather than Scotland, because she

13

could see at the most connecting factors of the property. In this case, she
claimed to get heritable property in Ireland which she could just raise a claim
in Irish court which she thought containing more connecting factors.

14

CHAPTER IV
CLOSING
A. CONCLUSION
This case basically contains the right of cohabitant when his/her former
cohabitant dies and leaves property, in this case is intestate estate. The claimant, as
the former cohabitant of the deceased insisted to have her right to obtain the
intestate estate of the deceased including the heritable property in Ireland, which
contains foreign element. She raised a claim against the deceaseds kin, but finally
the sheriff court only granted her the capital sum in amount of 5502 Euro, and
repelled the other claim including the heritable property in Ireland. In the end, the
court used the principle of lex rei sitae or lex situs, because the property was not in
jurisdiction of Scotland, so the Irish law would be more suitable in settling the
propertys case in Ireland. But, unfortunately, the article 29 of Family Law
(Scotland) Act 2006 contains an ambiguous matter as well. Because it is not clear
whether if there is lex causae, like in this case there was heritable property in
Ireland. Should the lex cause or lex fori that should be applied in this case?
Finally, the court decided that the claimant did not deserve to obtain the heritable
property in Ireland, but she could try to raise a claim regarding that property in
Irish court.
B. RECOMMENDATION
For my personal recommendation, this case actually is quite ambiguous and
the Family Law also does not explain specifically about the property outside the
Scotland for the former cohabitant. It does explain if the deceased dies intestate,
and before his death he was domiciled in Scotland, the former cohabitant could
receive the intestate estate of the deceased. But, unfortunately, it does not explain
about the criteria of the property more specifically. I think they should amend their
Family law, if this kind of case occurs again, to be more suitable and does not
contradict with private international law. Because it is not revised than it could
raise another ambiguity regarding the exact property of the deceased, whether it is
only in Scotland or it can be outside Scotland as well.

15

BIBLIOGRAPHY

The Student Lawyer at http://thestudentlawyer.com/2013/06/17/the-scottish-

legal-system-in-a-nutshell/, 2013.
Wikipedia at http://en.wikipedia.org/wiki/Scots_family_law, 2014.
Where
does
Scots
Law
come
from?

at

http://scotland.shelter.org.uk/get_advice/advice_topics/complaints_and_court_
action/structure_of_the_scottish_legal_system/where_does_scots_law_come_f

rom, 2014.
Electronic Journal of Comparative Law at www.ejcl.org/103/art103-5.doc,
2006.

16

APPENDIX
JUDGMENT OF THE CASE:

SHERIFFDOM OF TAYSIDE CENTRAL AND FIFE

A56/08

JUDGMENT
of
SHERIFF PRINCIPAL R A DUNLOP QC
in the cause
MARGARET ROSE KERR
Pursuer and Appellant
against
(FIRST) PAUL MANGAN; (SECOND) CHARLES MANGAN; (THIRD)
ANTHONY JOSEPH MANGAN; (FOURTH) MARY THERESA MANGAN;
(FIFTH) ELIZABETH GALLACHER
Defenders and Respondents
__________________________________________

Act: Ms Malcolm, Advocate instructed

by Jameson & Mackay, Solicitors,
Perth
Alt: Mr Leighton, Advocate, instructed by Elliot & Co, Solicitors, Perth

17

PERTH, 15 February 2013. The Sheriff Principal, having resumed

consideration of the cause, (1) refuses the appeal of the pursuer
and allows in part the cross appeal of the second
defender; (2) varies the sheriff's interlocutor of 4 July 2011 as
follows: (a) by deleting from finding in fact 11 the figure "5502" and
substituting therefor "nil"; (b) by inserting a new finding in fact and
law numbered 1 "That the value of the net intestate estate of the
late Anthony Mangan within the meaning of section 29 of the Family
Law (Scotland) Act 2006 is nil."; (c) by renumbering finding in fact
and law 1 as 2 and inserting therein before the word "entitled" the
word "not"; and (d) by deleting existing finding in fact and law
2; (3) recalls the said interlocutor insofar as it sustains the second
plea in law for the pursuer, repels the fourth plea in law for the
second defender and makes an order cognitionis causa
tantum against the defenders for payment of a capital sum of 5502
out of the net intestate estate of the deceased Anthony
Mangan; (4) repels the second plea in law for the pursuer; sustains
the fourth plea in law for the second defender and refuses to grant
an order in terms of the first crave of the initial writ; quoad
ultra adheres to the sheriff's said interlocutor; (5) recalls the
sheriff's interlocutor of 25 November 2011 and appoints parties to
be heard further on the question of expenses in the court below on a
date to be afterwards fixed; (6) certifies the appeal as suitable for
the employment of junior counsel; finds the pursuer liable to the
second defender in the expenses of the appeal; allows an account
thereof to be given in and remits the same when lodged to the
auditor of court to tax and report.
NOTE:
Background

18

[1] The pursuer is the former cohabitant of the deceased Anthony

Mangan (hereinafter referred to as "the deceased"). She had lived
with him for a period of twenty two years up until his death on 10
August 2007. They resided together at an address in Perth and at
his death Anthony Mangan was domiciled in Scotland.
[2] The deceased died intestate. At the time of his death he owned
heritable property in County Mayo in the Republic of Ireland having
a value in January 2009 of not less than 200,000. He also owned
moveable property partly in Scotland and partly in Ireland
comprising an account with the Royal Bank of Scotland with a credit
balance of 8552.05 and an account with the Ulster Bank with a
credit balance of 4708.16. There were funeral expenses of
6052.23, a capital acquisition tax liability in Ireland amounting to
23067.23 and interest (which continues to accrue) on a further tax
liability amounting to 9899. There was a further debt of 272.05
and fees for administering the estate in Ireland amounting to
5383.42.
[3] In the present action the pursuer seeks decree cognitionis causa
tantum for payment of a capital sum from the estate of the
deceased. She calls the next of kin of the deceased as defenders.
Her claim is founded on the provisions of section 29 of the Family
Law (Scotland) Act 2006 (hereinafter referred to as "the 2006 Act)
which, so far as material, provides as follows:
(1) This section applies where(a) a cohabitant (the "deceased") dies intestate; and
(b) immediately before the death the deceased was(i) domiciled in Scotland; and

19

(ii) cohabiting with another cohabitant (the "survivor").

(2) Subject to subsection (4), on the application of the survivor, the
court may(a) after having regard to the matters mentioned in subsection (3),
make an order(i) for payment to the survivor out of the deceased's net intestate
estate of a
capital sum of such amount as may be specified in the order;
(ii) for transfer to the survivor of such property (whether heritable or
moveable) from that estate as may be so specified;
(b) make such interim order as it thinks fit.
(3) Those matters are(a) the size and nature of the deceased's net intestate estate;
(b) any benefit received, or to be received, by the survivor(i) on, or in consequence of, the deceased's death; and
(ii) from somewhere other than the deceased's net intestate estate;
(c) the nature and extent of any other rights against, or claims on,
the deceased's net intestate estate; and
(d) any other matter the court considers appropriate.
(4) An order or interim order under subsection (2) shall not have the
effect of awarding to the survivor an amount which would exceed
the amount to which the survivor would have been entitled had the
survivor been the spouse or civil partner of the deceased.

20

............
(10) In this section"intestate" shall be construed in accordance with section 36(1) of
the Succession (Scotland) Act 1964 (c.41);
"legal rights" has the meaning given by section 36(1) of
the Succession (Scotland) Act 1964 (c.41);
"net intestate estate" means so much of the intestate estate as
remains after provision for the satisfaction of(a) inheritance tax;
(b) other liabilities of the estate having priority over legal rights and
the prior rights of a surviving spouse or surviving civil partner; and
(c) the legal rights, and the prior rights, of any surviving spouse or
surviving civil partner; and
"prior rights" has the meaning given by section 36(1) of
the Succession (Scotland) Act 1964 (c.41).
Sheriff's Decision
[4] On his view of these provisions the sheriff made an order for
payment of a capital sum of 5502. The key components of his
decision were his view, firstly, that the right given a cohabitant in
terms of section 29 was not a right of succession, secondly, that the
heritable property in Ireland formed part of the "net intestate
estate" of the deceased from which payment of a capital sum in
terms of section 29 could be exacted and, thirdly, that the
restriction in section 29(4) of any award so that it did not exceed the
amount to which the survivor would have been entitled had the

21

survivor been the spouse of the deceased should be read as

meaning "entitled under Scots Law". The sheriff pointed out that,
had the pursuer and deceased been married, the pursuer's prior
rights would have been calculated by reference to the estate
excluding the heritable property in Ireland. On that approach, having
apportioned the debts, the sheriff concluded that the pursuer's
claim to prior rights would not have exceeded 5502. That figure
contrasts with the figure of 42,000 had succession to the whole
estate of the deceased been governed by Scots Law.
[5] The pursuer has now appealed and the second defender has
cross appealed. In the pursuer's note of appeal the principal
contention is that the sheriff erred in his interpretation of section
29(4) and in particular erred in his conclusion that the amount of
any sum which could be awarded under section 29 was restricted to
the amount to which a surviving spouse would be entitled under
Scots Law. It was further contended that this interpretation was
inconsistent with the sheriff's conclusion that the "net intestate
estate" against which a cohabitant could pursue a claim included
the value of the deceased's estate wherever situated. In the second
defender's note of appeal the principal contention is that the sheriff
erred in his interpretation of the phrase "net intestate estate" and
that that phrase ought to be construed as excluding heritable estate
abroad.
Submissions for the pursuer and appellant
[6] In elaborating upon her note of appeal counsel for the pursuer
submitted, firstly, that section 29 did not confer a right of
succession nor a right akin to a claim for prior or legal rights but was
a stand alone provision conferring a right to claim on the deceased's
estate. In support of this submission reference was made

22

to Simpson v Downie 2012 CSIH 74 which considered the provisions

of section 28 of the 2006 Act. It was submitted that both sections 28
and 29 had the same genesis and the view of the Inner House that
section 28 must be viewed as a "free-standing, self-contained
statutory innovation" applied with equal force to section 29. This
was consistent with the reports of the Scottish Law Commission,
firstly, on Succession (No 124 of 1990) and, secondly, on Family Law
(No 135 of 1992) which clearly distinguished between the
cohabitant's right to claim on the estate of the deceased and a right
of succession.
[7] Turning to the question of what was comprised within the "net
intestate estate" of the deceased, counsel drew attention to the
provisions of section 29(10) of the 2006 Act and the provisions of
section 36(1) of the Succession (Scotland) Act 1964, noting that the
definition of "net intestate estate" in the 1964 Act was different from
the definition in section 29(10) of the 2006 Act. Thus, for present
purposes, section 29 could be seen to draw on the provisions of the
1964 Act only insofar as it provided a definition of "intestate".
Looking at these provisions together it was submitted that "net
intestate estate" comprised the whole of the deceased's estate
insofar as not disposed of by testamentary disposition and after
provision has been made for the satisfaction of inheritance tax,
other liabilities and legal and prior rights. It was submitted therefore
that the sheriff had been well founded in concluding that the
heritable property in Ireland formed part of the "net intestate
estate" of the deceased for the purposes of section 29. Thus section
29(10) provided a definition of "the pot" from which cohabitants
could claim so that an order under section 29 had the effect of
constituting a debt against the estate of the deceased. The fact
that, for the purposes of succession, heritable property devolved

23

according to the lex situs(in this case the law of Ireland) did not alter
that state of affairs.
[8] Against that background it was submitted that section 29(4) was
not confined to a consideration of what a surviving spouse would
have received by way of prior or legal rights according to Scots law
of succession. The policy imperative behind section 29(4) was not to
undermine the status of marriage and thus the purpose of section
29(4) was to ensure that a cohabitant could not receive more of the
deceased's estate than had she been a spouse. Section 29(4) had to
be read in the context that the "net intestate estate" comprised the
whole undisposed of estate of the deceased and therefore the
question raised by section 29(4) was what would a surviving spouse
have been entitled to receive out of the whole intestate estate of
the deceased. It was recognised that the answer to this question
might require evidence about the law of Ireland but in the absence
of such evidence one should assume that the law of Ireland was the
same as the law of Scotland. It was submitted that the sheriff's
interpretation of section 29(4) rendered irrelevant the definition of
"net intestate estate" where that estate comprised foreign heritable
property.
[9] Looking at the question of interpretation more broadly, counsel
referred to the approach adopted by the Supreme Court in Gow v
Grant 2012 UKSC 29 when considering the provisions of section 28
of the 2006 Act. Reference was made to the comments of the
Deputy Minister for Justice on the provisions in the Bill which
became the 2006 Act and against that background it was submitted
that the mischief which section 29 sought to address was that a
cohabitant would receive no benefit from the estate of the deceased
according to the law of intestate succession whereas, depending on

24

the circumstances, it would be fair that a cohabitant should benefit

from the deceased's estate. It was submitted therefore that section
29 ought to be interpreted with the principle of fairness in mind.
Submissions for second defender and respondent
[10] In reply counsel for the respondent submitted that section 29
was a provision innovating on the law of succession. The long title of
the 2006 Act supported that proposition as did the language used in
the section itself. The right to claim only arose on death and any
order made under section 29(2) was for payment out of the
deceased's estate. It was submitted that it was a legal fiction to
suggest that an order based on the value of the estate including the
heritable property in Ireland did not affect the law of succession in
Ireland and in reality an order for payment of a capital sum
calculated by reference to the entirety of the net intestate estate
was an order determining how that estate was to devolve.
[11] It was submitted that general principles of private international
law would not recognise the right of a Scottish court to determine
the succession to heritable property in Ireland and such a
jurisdiction was excluded under the 1964 Act section 1(1). It was
clear that precedence in these matters was given to the law of the
place at which the heritable property was situated. In support of
these submissions reference was made to Arab Bank plc v
Mercantile Holdings Limited 1994 2 WLR 307 at 313, Anton on
Private International Law 2nd edition page 676 and Macdonald v
Macdonald 1932 SC (HL) 79. Against that background it was
submitted that it was inherently unlikely that section 29 was
intended to alter the way in which foreign heritage should devolve
and that, if that had been the intention, one would have expected a
much clearer and specific provision to that effect. Furthermore it

25

would be surprising if, in exercise of the power set out in section

29(2)(a)(ii), a Scottish court could authorise transfer of heritage
abroad. It was submitted therefore that the phrase "net intestate
estate" ought to be construed as qualified by the words "so far as it
is estate which falls to be regulated by the law of Scotland"
(reflecting the language used in section 1(1) of the 1964 Act). Such
an interpretation would consist with the Scottish Law Commission
Report on Succession (1990) at page 111 and on Family Law (1992)
at paragraph 16.31 and also with the Scottish Law Commission
Report on Succession (2009) which plainly envisaged the rules of
private international law continuing to apply. In this latter regard it
was submitted that the rules of private international law will apply
unless expressly disapplied.
[12] Turning to the proper interpretation of section 29(4) counsel
submitted that, if section 29 was a provision dealing with the law of
succession, it could readily be seen that section 29(4) was directed
to the question what a surviving spouse would receive according to
the law of Scotland. In the circumstances of this case the sheriff was
correct to refer only to prior rights because the estate was
insufficient to support a claim for legal rights or to provide any free
estate.
Discussion
[13] This appeal is concerned with the meaning and effect of section
29 of the 2006 Act. It is clear from the submissions on either side of
the bar that there is more than one way of looking at these
provisions and, consistent with the approach of the Supreme Court
in Gow v Grant, it appeared to be common ground that one could
legitimately have resort to the pre-legislative and parliamentary
material to discover the mischief that section 29 was designed to

26

address. Both parties made reference to that material and I have

approached the issues in the appeal on the basis that it is legitimate
to do so.
[14] The genesis of the 2006 Act was the 1992 Scottish Law
Commission Report on Family Law (no 135) which, in relation to its
proposals for discretionary provision on death for cohabitants,
represented a development of thinking since its 1990 Report on
Succession (no 124). In the consultative memorandum (no 69 of
1986) preceding the 1990 Report the Commission had expressed
the view that there was a clear case for allowing a cohabitant to
apply for provision out of the deceased's estate. In the 1990 Report
consideration was given to the more general question whether a
discretionary system of family provision should be introduced in
place of a system of fixed legal rights for spouses and children. That
suggestion was rejected but by the time of the 1992 Report there
was at least support for a discretionary system of provision for
cohabitants. It seems clear therefore that the focus of the
Commission's discussion at the relevant part of this Report was the
relative merits of a system of fixed rights and a system of
discretionary provision, the main advantage claimed for the latter
being that, in relation to cohabitants, it could "take account of the
widely differing circumstances of different cases" (paragraph 16.29).
While recommending a discriminating approach between spouses on
the one hand and cohabitants on the other, nevertheless what the
Commission was suggesting was in effect an enlargement of the
class of persons for whom "family provision" should be made. On
that approach it can be seen that the character of the claim of the
surviving spouse and issue is not materially different to that of the
surviving cohabitant, the only distinction being the means by which
that claim is to be established and the priority that is given to one

27

over the other - on the one hand the claim is fixed or formulaic and
given priority and on the other the claim is variable and determined
by a discretionary decision of the court and deferred to those of the
spouse and issue. In both cases however what is being determined
is the share of the deceased's estate to which spouse, issue or
cohabitant as the case may be is entitled. On a fair reading of the
Commission's 1992 Report therefore it seems to me that what was
being proposed was an innovation on the law of succession so that a
cohabitant might in appropriate circumstances be allowed to share
to some extent the intestate estate of the deceased when he or she
would not otherwise receive any benefit.
[15] The 2006 Act was enacted to give effect to the
recommendations of the Scottish Law Commission in the 1992
Report (see Gow v Grant paragraph 6). The long title to the Act
defines its scope as including the making of "provision conferring
rights in relation to ... succession ... for persons living, or having
lived, together as if husband and wife or civil partners". So far as I
can see the only provision of the 2006 Act to which that description
can be applied is section 29. In Gow v Grant reference was made
(para.28) to the statement of the Deputy Minister for Justice, Hugh
Henry, during the passage of the Bill which became the 2006 Act.
Specifically reference was made to the executive's view that the law
needed to provide a framework for a fair remedy when committed
relationships founder or the parties to them are separated by death.
When the Bill was debated in Parliament on 15 December 2005 the
Deputy Minister for Justice reiterated that view specifically in
relation to what is now section 29 - "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

28

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 ..."
[16] When one looks at the provisions of section 29 in this context it
seems to me that the mischief which it was intended to address was
that a cohabitant would receive no benefit from the estate of a
deceased according to the law of intestate succession when,
depending on the circumstances, it would be fair that they should.
The only provisos qualifying that objective are that the rights of the
surviving spouse or civil partner are to remain intact and the
cohabitant should be no better off than if they had been a spouse or
civil partner.
[17] When one examines the language of section 29 against this
background in my view it becomes apparent that section 29 is
indeed a provision which is intended to confer rights on cohabitants
in relation to the succession of a deceased as the long title to the
Act suggests. As I have already indicated it seems to me that the
character of the claim of the cohabitant is essentially the same as
the character of the claim of the surviving spouse albeit each claim
ranks differently. This is evidenced by the similarity of what is
provided for in sections 8 and 9 of the 1964 Act on the one hand
and what is achieved through the operation of section 29 of the
2006 Act on the other. In the former one finds reference to the
words "the surviving spouse shall be entitled ... to receive out of the
intestate estate" and in the latter the order made by the court will
be the measure of what the cohabitant is entitled to receive out of

29

the net intestate estate. Accordingly both provisions share this

common character of defining what each of the spouse and
cohabitant is entitled to receive out of the deceased's estate.
[18] While by analogy with section 28 I feel bound to accept that
section 29 ought to be viewed as a "free-standing, self contained
statutory innovation" (Simpson v Downie) in my respectful opinion
that does not mean that one must ignore the context in which the
innovation is intended to operate. In my view section 29 is a
provision which innovates on the manner in which the estate of a
deceased falls to be distributed and accordingly the proper context
in which it ought to be set is the scheme set out in the 1964 Act.
This is consistent with the references to that Act in section 29(10) of
the 2006 Act and also with the principles of private international law.
It follows in my view that section 29 ought not to be construed in a
manner which is inconsistent with the scheme of the 1964 Act and
the proper scope of the court's jurisdiction thereunder.
[19] As to the scope of the 1964 Act it is common ground that prior
and legal rights cannot be taken out of immoveable estate abroad
notwithstanding the definition of "estate" and "intestate estate" in
section 36. This follows from an ordinary application of the lex
situsto immoveable property (Anton on Private International
Law 3rd edn. para. 24.24 ff). If it be the case that the effect of section
29 is to give to a surviving cohabitant a claim on the deceased's
estate which is at least analogous to that of a surviving spouse it is
difficult to see why the same rule should not apply to claims brought
under section 29. The provisions of section 29(2)(a)(ii) lend support
to that view.
[20] A principal argument for the appellant against such a view was
derived from the provisions of section 29(10), the contention being

30

that section 29 only drew on the provisions of the 1964 Act for the
definition of "intestate". It should be noted however that the
terminology used in section 29(10) is not consistent throughout. On
the one hand "legal rights" and "prior rights" have the "meaning"
given by section 36(1) of the 1964 Act whereas "intestate" is to be
"construed in accordance with" section 36(1) of the 1964 Act. In my
view this latter manner of expression imports wider considerations
than just the definition of the word "intestate" in section 36(1). Thus
the definition of "intestate estate" in section 36 may be apt to
include the intestate estate of a deceased wherever situated and
yet the rules of private international law qualify the scope of the
court's jurisdiction to deal with that estate. It seems to me that
section 29 must be construed with that context clearly in mind.
[21] In my opinion the interpretation of section 29 offered by the
pursuer and appellant gives the section an extra-territorial effect
which is contrary to the general principles of private international
law, since it seems clear that an order based on the value of the
estate including the heritable property in Ireland is liable in practice
to affect the manner in which that property devolves. The position is
thus very similar to that in Macdonald v Macdonald sup.cit in which
Lord Tomlin stated (at page 85): "Where a foreign asset is
immoveable by nature or in the contemplation of the lex rei sitae, a
claim to render it subject to the legitim of Scots law is really a claim
that it should devolve contrary to the lex rei sitae, and cannot, I
think, be supported consistently with the principles of private
international law."
[22] In any event, even accepting that the words of section 29 are
capable of bearing the meaning proposed by counsel for the
appellant, in my view it is still open to the court to give them a more
limited meaning where there is a proper ground for concluding that

31

this was the intention of Parliament. As it was said in Arab Bank plc
v Mercantile Holdings Limited (page 313E/F) - "The consideration
that the more limited meaning is necessary in order to avoid the
creation of a jurisdiction wider than that generally recognised by
international law has often been recognised as such a ground."
[23] Bringing all these considerations together therefore, in my
opinion the position adopted by the respondent as to the meaning
and scope of section 29 is to be preferred. Thus references to the
"net intestate estate" of the deceased in that section ought to be
interpreted as meaning the net intestate estate that is to devolve
according to Scots law including Scots private international law, with
the result that it would not include the immoveable property in
Ireland. In reaching this view I am re-assured by the knowledge that
that is also the view of section 29 held by the Scottish Law
Commission and set out in its Report on Succession (2009) at
paragraph 4.87. Similarly it coincides with the view of the authors of
the 3rd edition of Anton on Private International Law (para. 24.115).
Such an interpretation also gives section 29 internal consistency,
specifically consistency between sections 29(2) and 29(4). The
sheriff's approach to section 29(4) seems to me well founded and
reflects many of the considerations which I have discussed. I would
only differ from him in thinking that the same approach ought also
to apply in identifying more generally the scope of the court's
jurisdiction in terms of section 29(2). However, subject to some
qualification, the outcome is essentially the same notwithstanding
this difference.
[24] The qualification relates to the practical consequences which
follow the conclusion which the sheriff reached and which I also
have reached on wider grounds. Both parties were at one in
submitting that the sheriff's approach in paragraphs 60 to 62 of his

32

judgment was incorrect and that he ought not to have apportioned

the debts as between the estate in Ireland and that in Scotland. The
common position of parties at the appeal was that all the debt
should be deducted from the moveable estate in Scotland with the
result that there was no relevant estate from which a capital sum
ordered under section 29 could be paid. It followed that on the
hypothesis which has emerged decree should be refused. It will be
seen from paragraph 61 of the sheriff's judgment that he was left in
a state of uncertainty about what position was being adopted. It is
unfortunate that this common position was not made clear to the
sheriff at the time of the proof but given that that is the position
now adopted it is clear that certain alterations require to be made to
the sheriff's findings in fact and fact in law to reflect that
understanding.
[25] A secondary issue in the appeal was the manner in which the
sheriff had disposed of the question of expenses. Following a
hearing on expenses on 11 November 2011 the sheriff continued
consideration of the matter of expenses until 25 November 2011 on
which date he pronounced an interlocutor finding "the Defender
liable to the Pursuer in the expenses of the action." This manner of
expression does not reflect the fact that there were three defenders
who had participated in the action nor does it consist with the
sheriff's narrative of the submissions advanced by parties in a note
which he prepared in response to the note of appeal. So far as the
sheriff's note is concerned parties were agreed that he had
incorrectly recorded the pursuer's motion for expenses to have been
directed against all three compearing defenders when in fact it was
only made against the first and second defenders. Subject to
correcting the interlocutor to reflect that position the only issue
raised in the note of appeal for the second defender is whether he

33

should be found personally liable for the expenses without a right of

relief against the deceased's estate. Suffice it to say that in my
opinion the sheriff's reasoning in paragraphs 11 and 12 of his note
cannot be faulted. In any event I am not satisfied that it has been
shown that the sheriff's decision falls outwith a proper exercise of
discretion.
[26] That is sufficient for disposal of the third ground of appeal for
the second defender. However it does occur to me that parties have
overlooked the question of whether the liability for expenses needs
to be reconsidered in light of my decision in relation to the principal
issue in the appeal. I have no note of having been addressed by
parties on that question and in these circumstances I consider it
wise to allow parties an opportunity of doing so, particularly as the
sheriff's interlocutor of 25 November 2011 has to be recalled in any
event. It may be that parties will be able to adjust that matter
between them without a further hearing but if not I will assign a
hearing for that purpose.
[27] Parties were agreed that the expenses of the appeal should
follow success and that the appeal should be certified as suitable for
the employment of junior counsel.

34