A.

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 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
1 The Student Lawyer at
http://thestudentlawyer.com/2013/06/17/the-scottish-legal-systemin-a-nutshell/, 2013
2 Ibid
3 Wikipedia at http://en.wikipedia.org/wiki/Scots_family_law, 2014
4 Ibid

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
B. PRIVATE INTERNATIONAL LAW
Definition of 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
specifficaly, 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

5 The Student Lawyer at

http://thestudentlawyer.com/2013/06/17/the-scottish-legal-systemin-a-nutshell/, 2013
6 Where does Scots Law come from? at
http://scotland.shelter.org.uk/get_advice/advice_topics/complaints_a
nd_court_action/structure_of_the_scottish_legal_system/where_does
_scots_law_come_from, 2014

of rules entered into by the governments of various countries that determine

the rights and regulate the intercourse of independent nations.

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 longterm, 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 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/art1035.doc, 2006, pp. 13
8 Ibid, pp. 14