Recent statistics published by the Scottish Government indicate that despite having a growing population, we have a declining rate of marriage and divorce. This would indicate that more couples may simply be deciding to live with one another as opposed to going through the process of marriage or civil partnership.
In recognition of this cultural change, the law in Scotland identified that where couples were living together as if 'husband and wife' or as 'civil partners' (but had not formally entered a marriage or civil partnership) there was little legal protection or remedies available to them in the event of a separation or on the death of their partner. Since May 2006, the law has changed in Scotland to offer greater protection to cohabitees in the event of a separation or death of their partner. The rights do not, however, go as far as those offered to civil partners or married couples.
In the event of a separation, where a cohabitant regards that their former partner to have derived an economic advantage from contributions they made during cohabitation, while as a result of the separation they have suffered an economic disadvantage in the interests of their former partner or the parties children, they may apply to the court to seek an order requiring their former cohabitant to pay a capital sum to them. Such claims must be brought within a period of twelve months from the date of separation. Failing to do so will result in being time barred from seeking such capital payments.
In the event of a death of a cohabitant, section 29 of the Family Law (Scotland) Act 2006 allows the surviving cohabitant to make a financial claim on the estate of their deceased partner where they have died intestate (without a Will). Such claims must be made within a period of sixmonths from the date of death. Failing which, the surviving cohabitant would be time barred from bringing such a claim. If the deceased had a valid Will in place, then it would not be possible to bring such a claim.
Top Tips when considering cohabitation:
Be open and discuss long term plans with one another
Being open to discuss financial affairs and living arrangements will avoid potential animosity and allow for a relationship to develop on a trustworthy basis.
Seek legal advice at the outset
You may wish to discuss this with your partner at the point of considering living together as cohabitants. This will allow you to become aware of your legal rights as a cohabitant and consider entering a Cohabitation Agreement to protect yourselves in the unfortunate event of a separation or death of the other.
Considering buying a home together?
Give consideration to how the deposit for the property will be funded, how the mortgage and bills are to be paid, and if in the unfortunate event of a separation who should keep the house or, if sold, how the sale proceeds should be divided. There is no reason why if unequal deposits are paid or unequal contributions to the mortgage are made each month, why the title to the property couldn't be taken in unequal shares at the time it is purchased. This would simply be recorded in the title deeds to the property.
Upon purchasing a property and registering the title deeds, give serious consideration to including or excluding a 'Survivorship' or 'Special Destination' clause in the title deeds. Such clauses provide that on the death of one of the property title holders, the title to the property will automatically transfer to the survivor. These issues should be carefully considered with your conveyancing solicitor at the point of purchasing a property.
Create a Will
Preparing a Will or updating a Will should not be overlooked. This will allow you to include your partner in your estate on death if you wish to do so. Alternatively, for individuals who may have been in a previous marriage or have children from a past relationship, they may wish to prepare a Will to ensure that their children and wishes are protected on death from a potential claim being brought. For individuals who may have been cohabiting for an extensive period of time, updating your Will is of great importance. Failure to do so could result in a beloved partner not being included in the Will on death and also being prevented from making a claim.
Revisit Cohabitation Agreements
During the course of a relationship over several years, circumstances change and as a result a Cohabitation Agreement entered at the outset of a relationship 10 years ago is unlikely to take into account any changes in circumstance. Regular changes may include one party coming into wealth, which may be from pension interests, inheritances or gifts from third parties. In such situations should such sums be contributed to joint purposes, it may result it issues arising in the event of a separation from economic advantages being gained by one party to the detriment and economic disadvantage of the other.
Moving from Cohabitation to a Marriage or Civil Partnership?
This is a significant step, not only in terms of demonstrating a greater open commitment but also by accepting greater legal obligations that exist between married spouses and civil partners in comparison to that of cohabitants. At the point of marriage or civil partnership it is worth reconsidering the terms which may have been included within a Cohabitation Agreement and consider whether it is desired for the same terms to continue during marriage or whether a new agreement such as a Pre-nuptial or Post-nuptial agreement should be entered into.
Do not delay in seeking legal advice!
As mentioned above, there are strict time frames for cohabitants to try to resolve issues following a separation or on the death of their partner. Failure to agree matters or raise a court action within 12 months of the date of separation will result in a court action being time barred under section 28 of the Family Law (Scotland) Act 2006.
In situations whereby one cohabitee has died without a Will, the surviving cohabitee has a period of six months to make a claim on the deceased's estate. Failing which, the surviving cohabitee will be time barred from making a claim under Section 29 of the Family Law (Scotland) Act 2006.
Individuals should be aware of the legal implications they may face when deciding to live together with a partner. Although awareness of the public in Scotland of the legal rights now available to cohabitants is on the rise, the wording of the legislation is far from clear and this has been demonstrated in numerous court actions since the changes to the law introduced in 2006.
Get in touch
To discuss issues regarding Cohabitation with a member of our family law team, please do not hesitate to contact a member of our family law team by telephone or by submitting an online enquiry for a confidential and free chat.