MARGARET ROSE KERR v. PAUL MANGAN & Ors [2013] ScotSC 16 (15 February 2013)

MARGARET ROSE KERR v. PAUL MANGAN & Ors [2013] ScotSC 16 (15 February 2013)

Section 29 of the Family Law (Scotland) Act 2006 must be interpreted as conferring discretionary rights on cohabitants in relation to the net intestate estate regulated by Scots law, excluding foreign heritable property. The maximum award is limited to what a spouse would have received under Scots law. All debts should be deducted from the moveable estate in Scotland, resulting in no relevant estate from which a capital sum could be paid.

Citation
[2013] ScotSC 16
Parties
Pursuer and Appellant: Margaret Rose Kerr; Defender and Respondent: Paul Mangan; Defender and Respondent: Charles Mangan; Defender and Respondent: Anthony Joseph Mangan; Defender and Respondent: Mary Theresa Mangan; Defender and Respondent: Elizabeth Gallacher
Jurisdiction
Scotland
Judgment Date
15 February 2013
Procedural Posture
Appeal / Judgment on Appeal and Cross Appeal
Outcome
Appeal refused, cross appeal allowed in part
Legal Topics
Cohabitant's Rights on Intestacy, Interpretation of Section 29 Family Law (scotland) Act 2006, Jurisdiction Over Foreign Heritable Property, Prior and Legal Rights, Private International Law Principles
Family Law Succession Private International Law Cohabitant's Rights on Intestacy Interpretation of Section 29 Family Law (scotland) Act 2006 Jurisdiction Over Foreign Heritable Property Prior and Legal Rights Private International Law Principles

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Parties

Margaret Rose Kerr

Pursuer and Appellant

Paul Mangan

Defender and Respondent

Charles Mangan

Defender and Respondent

Anthony Joseph Mangan

Defender and Respondent

Mary Theresa Mangan

Defender and Respondent

Elizabeth Gallacher

Defender and Respondent

Procedural Posture

Appeal / Judgment on Appeal and Cross Appeal

Legal Issues

  1. 1 Whether section 29 of the Family Law (Scotland) Act 2006 confers a right of succession or a discretionary claim
  2. 2 Whether 'net intestate estate' includes foreign heritable property
  3. 3 Proper interpretation of section 29(4) regarding the maximum award to a cohabitant

Ratio Decidendi

Section 29 of the Family Law (Scotland) Act 2006 must be interpreted as conferring discretionary rights on cohabitants in relation to the net intestate estate regulated by Scots law, excluding foreign heritable property. The maximum award is limited to what a spouse would have received under Scots law. All debts should be deducted from the moveable estate in Scotland, resulting in no relevant estate from which a capital sum could be paid.

Court Disposition

Appeal refused, cross appeal allowed in part

Orders

  • Sheriff's interlocutor of 4 July 2011 varied to reflect nil net intestate estate
  • Order cognitionis causa tantum recalled