Taking partners’ financial resources into account: civil legal aid

How is ‘partner’ defined?

Regulation 11 of the Civil Legal Aid (Scotland) Regulations 2002 says that, “For the purposes of section 42 of the Act, two persons living together as husband and wife or in a relationship which has the characteristics of the relationship between husband and wife except that the persons are of the same sex shall be treated as if they were spouses of each other”. The practical effect of this is that Regulation 11 covers spouses and civil partners and those living together in relationships with the characteristics of spouses or civil partners.

In this guidance we will use the term “partner” to mean an applicant’s husband or wife, civil partner, or any person that the applicant is living with in a relationship which has the characteristics of the relationship between husband and wife or spouses or civil partners. Regulation 11 of the Civil Legal Aid (Scotland) Regulations 2002 requires that when assessing an applicant’s financial eligibility and the amount of any contribution that the applicant can be asked to pay towards the cost of the case, if the applicant is married or living with a partner as if married, even if the person they are living with is of the same sex, the resources of the couple must be aggregated unless:

  • there is a contrary interest between the parties in the case for which legal aid is sought
  • the applicant and their spouse or partner are living separate and apart.

Exceptions to partner resource aggregation: contrary interest

In order for the resources of a partner to be disregarded on the grounds that the partner holds a contrary interest in the case it must be shown that the partner is seeking a different outcome from the applicant. This is not the same as where a partner may have a different interest in the proceedings, for example, where the partner may be called upon to give evidence which is detrimental to themselves or to the  applicant’s case but nonetheless he/she seeks the same outcome as the applicant.

Exception to partner aggregation: parties living apart (list of factors)

The regulation also allows that where the applicant and partner are no longer living together and have separated then aggregation need not apply. In considering if aggregation should not apply for this reason it must be shown that not only is there a physical separation but also that the relationship is at an end.

Some periods of physical separation take place without ending a relationship. For example:

  • due to the requirements of the applicant’s or partner’s military service or job
  • arrangements arrived at to facilitate residence or contact with children
  • the need to maintain separate households as a result of accommodation difficulties
  • the applicant or partner is in prison

In each of these examples, which do not constitute an exhaustive list, couples may consider their relationship to be on-going despite their physical separation.

In deciding if aggregation of resources should take place, particularly where the couple have not entered into a form of marriage or civil partnership, there are several factors which will be used to determine if the applicant is in a relationship which warrants aggregation. Essentially what is to be established falls under two broad headings: do the parties live together; and if so, do they do so in the manner of spouses or civil partners.  As noted above it is not always the case that the parties live together permanently.

The principal factors which we will take into account in deciding if the parties live together and do so as if spouses or civil partners are:

  • Evidence of the extent of co-habitation. Regulation 11 requires there to be some degree of co-habitation and so we need to know if the parties spend any time co-habiting and the extent of that.
  • Duration of co-habitation. If the parties are cohabiting, over what period have they done so? A degree of longevity may be persuasive in suggesting that the relationship concerned is as if spouses or civil partners.
  • Degree of continuity of co-habitation. Maintaining the relationship while other personal, career or life changes are taking place may be indicative of a relationship.
  • Reason for any interruption of co-habitation. As noted above, some periods of physical separation can take place without any effect on the status of the relationship but to assess this we need information about the reasons. For example, one of the parties may be serving in the Armed Forces.
  • Degree of mutual support: financial, emotional and otherwise. People may live together for a variety of reasons other than as husband and wife – for example as friends, siblings, caregivers or housekeepers. In circumstances such as these, where an applicant is living with another person who is not a partner or spouse, then we will not aggregate their resources. Provision of mutual support may indicate that they are living together as if spouses or civil partners.
  • Acknowledgement by the parties or others of the relationship. For example, the parties may describe themselves as partners or may refer to themselves as such in court documentation or in support of a legal aid application.
  • Whether there is a second home and, if there is, its purpose and location. It is not necessary for the parties to live together all of the time in one location in order for them to live together as if spouses or civil partners. There can be practical explanations for why the parties maintain more than one home. For example, it may be to facilitate child contact arrangements or it may be related to work.
  • What is the intentionality behind any degree of living separate and apart? As noted above, physical separation alone may not end a relationship. There may be other indicators that it is the intention of the parties to continue the relationship after the period of temporary or enforced separation, such as a period of imprisonment.

This list is by no means exhaustive and it is not necessary for all of these factors to be present before a decision will be arrived at that aggregation is appropriate. Each case will be considered in accordance with its own facts.

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