Cohabitation is an arrangement where two or more people who are not married but live together. Such arrangements are increasingly common, and couples increasingly prefer cohabitation to marriage. There are various legal implications arising from co-habitation that are important to consider. Our team of experienced, award-winning family lawyers are happy to assist and guide you on your matter. Call us on 0141 429 8166 or online contact form.
To reflect the prevalence of such relationships in Scotland, the law was reformed in 2006 in the Family Law (Scotland) Act 2006, which gave cohabitants the right to certain financial provision after the relationship comes to an end, either through the breakdown of the relationship or one of the parties passing away.
This legislation has given cohabitants the rights to make claims as well as the need for protection against potential claims against them. The law in this area is not straightforward and strict time-limits for raising proceedings apply, and therefore it is important that legal advice from an experienced family law solicitor is sought at an early stage.
If you are considering cohabiting with your partner, you would be well advised to consider a Cohabitation Agreement which offers protection in a similar way to a Pre-nuptial Agreement and you should visit the relevant section of our website. Such an agreement can spell out and protect your individual, pre-owned assets, and can also deal with day to day matters such as contributions to household bills.
As a pre-requisite to any claim, the court must be satisfied that a relationship amounts to a “cohabitation” for the purposes of the Act. To do so the court will look at the length and nature of the relationship together with the nature and extent of any financial arrangements the couple has had in place. It may seem surprising but being married at the time is not a bar to being considered as a some-one else’s cohabitant.
A surviving cohabitant may make a claim under s 29 of the Act against the deceased’s estate if the deceased has not left a Will, was domiciled in Scotland immediately before the death and was cohabiting with the survivor at that time. Strict time limits apply and any formal claim in court requires to be intimated and served on the other party within six months of the date of death or the right to claim will lapse and be lost.
Whilst the court has a wide discretion on the amount to award the deceased’s cohabitant, this cannot be more than they would have been entitled to if they had been married to the deceased. In deciding the amount to award, the court will look at the size and nature of the estate, and any benefits the survivor derived such as pension fund claims. The court will also take account of rights or claims which other people might have on the estate.
In terms of Section 28 of the Act, cohabiting couples are entitled to a financial provision on separation, but not the same extent as married couples or civil partners do on separation. There is no set rule which states what a cohabitant will be entitled to on separation. It is matter of the court’s discretion what level of capital sum to award, based on the facts and circumstances of each individual case, and based on the guidance provided in the Act.
The rights of former cohabiting partners who have been left out of pocket to make claims were recognised for the first time in 2006, but in a much more restricted way than those who were married. Read our guidance on making a financial claim more than a year after cohabitation has come to an end here.
If you are making or defending a capital claim on separation, bearing in mind the one-year time limit for court action, it is important that you receive clear and concise legal advice on your prospects of success and the value of any claim, at an early stage. It will be necessary for the claimant to show economic disadvantage because of the separation, and that their ex-partner has, in turn, derived an economic advantage from that. Recognition will also be given to where any future child-care burden falls. The first step for us as your advisors is to try to negotiate to ensure a fair settlement is reached on your behalf to reflect a fair outcome in recognition of any economic disadvantage/ advantage that has occurred.
If a settlement cannot be achieved, it is important to note the strict timescale that applies for making a claim in court - any court action must be raised and served within a year of the separation or the right to claim will lapse and be lost.
In the context of a claim on separation, is assumed that each cohabitant has an equal share and all household goods acquired during the cohabitation unless the item in question can be shown to have been acquired by a gift, inherited from a third party or bought from pre-existing funds. However, the definition of household goods excludes items such as money, securities, motor vehicles, caravans, pets and personal items such as jewellery, and can also exclude other items if the position has been regulated by a suitably framed Cohabitation Agreement.
In relation to any heritable property held jointly at the date of separation, the court can depart from equal shares this when asked to divide the property, if equal shares of the proceeds would create an unfair result - an example of this would be where one party provided the deposit to purchase the property. In that situation, the difference in contributions should be taken account of in the division of the property. If one partner owns the property in their sole name, the other has no right to claim on the property, but they can still make a capital claim to take account of factors such contributions towards the mortgage or any home improvements they have paid towards. In respect of pensions, unlike married couples, on separation, a cohabitant has no right to claim on the other’s pension.
If you are thinking about commencing a cohabitation, there are several very important legal matters that you would be well advised to consider. The ownership of money or assets is frequently dealt with in advance by way of a Cohabitation Agreement., and you may also require considering whether to make a Will. It is important that you get legal advice as soon as possible. Contact our family lawyers on 0141 429 8166 or complete our online contact form.
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