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:
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.
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:
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:
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.