Moot Speech

Cood evenlng ?our Lordshlp l shall be acLlng as Lhe senlor counsel for Lhe appellanL
Amanda kelly My frlend Mr 8oden has already made our submlsslons ln respecL of Lhe facL
LhaL our cllenL no longer llved ln Lhe flaL concerned l now wlsh Lo rebuL qulckly some of Lhe
polnLs of My learned frlend acLlng as [unlor for Lhe respondenL
8L8u11AL

now l would llke Lo conLlnue My Lord ln maklng our submlsslons on Lhe second polnL LhaL
Ms kelly and Mr MaklnsLry could noL be cohablLlng because Lhey she was noL 16 aL Lhe Llme
llrsL of all ln analyslng Lhls l would dlrecL ?our Lordshlp Lo secLlon 18 of Lhe MaLrlmonlal
Pomes lamlly roLecLlon ScoLland AcL 1981 ln subsecLlons one and Lwo of LhaL acL a power
Lo make an order glvlng occupancy rlghLs ls conferred Lo cohablLaLlng couples 1he courL ls
Lhen glven Lhe Lask of maklng an analysls of Lhe appllcanL's relaLlonshlp wlLh Lhe oLher parLy
and deLermlnlng lf Lhey were cohablLlng for Lhe purposes of Lhe acL

ln Lhe acL a couple ls cohablLlng lf Lhey llve LogeLher as man and wlfe and ln maklng LhaL
[udgemenL Lhe courL shall conslder all Lhe relevanL clrcumsLances ln Lhe case lncludlng Lhe
Llme Lhey have been LogeLher (a) and any chlldren Lhey have or have LreaLed as one of Lhelr
own (b)
As we can see Lhen Lhe courL ls glven a dlscreLlon Lo make LhaL declslon followlng Lhe LesL
Powever Lhe sherlff ruled agalnsL our cllenL on Lhe basls LhaL she could noL have been llvlng
wlLh Lhe respondenL as man and wlfe" because she was noL legally able Lo be marrled
havlng never cohablLed wlLh hlm once she reached Lhe age of 16 Pls Lordshlp Lhen
dlsLlngulshed mlsLakenly Lhe case of A8 v Cu also known as Woodward v Woodward
Would ?our Lordshlp llke a remlnder of Lhe facLs of Lhe case? (yes/no) See noLes sheeL for
facLs
now ln Lhe oplnlon of Lord CuLhrle ln LhaL case he makes lL clear LhaL Lhe cohablLaLlon
afLer Lhe legal requlremenLs of marrlage are seL down merely adds furLher evldence of LhaL
cohablLaLlon lL ls noL a legal requlremenL of Lhe LesL Cn page 423 ln Lhe second paragraph
Lord CuLhrle descrlbes LhaL
1he quesLlon for declslon by Lhe CourL ln a declaraLor of marrlage arlslng from cohablLaLlon
wlLh hablL and repuLe ls wheLher Lhe conducL and sLandlng of Lhe parLles ln Lhelr socleLy
lnfer LhaL Lhere has been an lnLerchange of consenL Lo marrlage or ln oLher words
wheLher Lhey regarded each oLher and were regarded by relaLlves and frlends as marrled
persons 8uL Lhe CourL musL declde cases on Lhe facLs as Lhey have occurred and noL upon
clrcumsLances as Lhey mlghL have been"
and LhaL
wheLher Lhe lnference from Lhelr cohablLaLlon and behavlour ln Lhe presence of Lhelr
relaLlves and frlends ls LhaL Lhey accepLed each oLher and were accepLed as belng marrled
persons durlng Lhelr cohablLaLlon"
now Lhls passage references marrlage buL lL musL be noLed LhaL Lhe remedy ln Lhls case
soughL was a marrlage by cohablLaLlon of hablL and repuLe noL Lhe remedy we seek buL Lhe
underlylng prlnclple ls Lhe same ln LesLs of cohablLaLlon Lhe LesL ls noL as llLeral as acLlng
and belng legally marrled wlLhouL Lhe formal recognlLlon as such buL lnsLead Lhe LesL ls one
of clrcumsLance and facLual background 1he order for marrlage ls granLed because llsL Lhe
reasons le sexual relaLlonshlp eLc and we submlL LhaL Lhe sherlff was mlsLaken ln
dlsLlngulshlng Lhls case and lL should apply Also Lo noLe ls LhaL Lhere was lnLenLlon on boLh
sldes LhaL buL for Lhe courL order from Lhe chlldren's panel Lhe Lwo would have conLlnued
Lo cohablL wlLh one anoLher
We now wlsh Lo expand on whaL are Lhe relevanL facLors ln Lhls case? We seek Lo show LhaL
followlng auLhorlLy ln handllng cohablLaLlon from recenL cases ln Lngland LhaL Lhe LesL ls
one of clrcumsLance and LhaL on evaluaLlon Lhe appellanL musL surely be regarded as
cohablLlng wlLh Lhe respondenL and LhaL Lhe order be granLed
So Lhen l would dlrecL ?our Lordshlp Lo klmble v klmble Would your lordshlp llke a
remlnder of Lhe facLs of Lhls case? (yes/no) lL ls a case from Lhe Plgh CourL of !usLlce lamlly
ulvlslon and Pls Ponour !udge 1yrer gave Lhe declslon We submlL LhaL Lhls case ls sLrongly
persuaslve ln deallng wlLh Lhe LesL for cohablLaLlon and LhaL followlng Lhe facLors
menLloned wlll surely lead Lo a declslon LhaL Lhe appellanL and respondenL were cohablLlng
!udge 1yrer examlnes Lhe facLs and Lhe precedenLs of cohablLaLlon ln Lngllsh law 1he legal
deflnlLlon of cohablLaLlon has no maLerlal dlfference from our own deflnlLlon ln ScoLs Law
ln LhaL a courL wlll examlne Lhe clrcumsLances of Lhe case ln decldlng wheLher or noL Lhe
parLles where cohablLaLlng whlch ls why we flnd lL so persuaslve Cn page 391 of Lhe case
reporL from aragraph u Lhere are conslderaLlons llsLed by !udge 1yrer 1he appllcable
ones ln Lhls case are

Llvlng LogeLher ln Lhe same household
A sharlng of dally llfe
SLablllLy and a degree of permanence ln Lhe relaLlonshlp
A sexual relaLlonshlp
Chlldren
1he 'oplnlon of Lhe reasonable person wlLh normal percerpLlons'

now Lhen we should Lurn Lo Lhe facLs of Lhe case lrom Lhe age of 14 Ms kelly has been ln a
relaLlonshlp wlLh Mr MaklnsLry whlch has lasLed unLll afLer her 16
Lh
blrLhday lor slx monLhs
of Lhe relaLlonshlp Lhe Lwo had been llvlng ln Lhe same flaL 1helr relaLlonshlp conLlnued
afLer she was forced Lo leave Lhe house by Lhe courL order AfLer Ms kelly Lurned 13 Lhe
Lwo were havlng sexual lnLercourse Per parenLs accepLed Lhe arrangemenL aL flrsL
lncludlng Lhe sexual relaLlonshlp and her frlends all vlewed Lhe Lwo as a couple" 1hey now
have a chlld LogeLher born only recenLly 1hls saLlsfles all Lhe crlLerla l have [usL llsLed 1hey
llved LogeLher and had a sLable relaLlonshlp up unLll Lhe blrLh of Lhe baby 1here was a
degree of permanence because Lhe relaLlonshlp conLlnued afLer Lhe courL order was
enforced 1hey had a sexual relaLlonshlp leadlng Lo concepLlon 1he oplnlon of Lhelr frlends
and famlly was LhaL Lhey were a couple 1hey now have a chlld