The Scottish Law Commission (SLC) has recently examined statutory financial rights for cohabitants and the distinction that should be made between spouses and civil partners, if any. In response, the Faculty of Advocates noted that although welcome, there are omissions from the paper.
In particular the Faculty noted that the definition of cohabitant in section 25(1)(a) of the Family Law (Scotland) Act 2006 in which the relationship is defined as "a man and woman who are (or were) living together as if they were husband and wife" is no longer appropriate as same sex couples can marry as well as enter into Civil Partnerships.
The definition must now embrace the modern construct of relationship in all forms while at the same time be capable of excluding the relationships the legislation was not designed to cover such as siblings. This is not an easy task but broadly speaking, the relationship should be identified as intimate and involving emotional and financial interdependence between two parties that are not married or in a civil partnership.
Whilst the response of the Faculty of Advocates focuses largely on financial provision when cohabitants cease to be in a relationship by reasons other than death, one issue identified also brings into stark focus the treatment of a cohabitant versus a spouse for succession. A person who is still married but separated, may also be in a cohabiting relationship. In death as in life, this may give rise to a need to prioritise between the two claims.
What are the succession rights of cohabitants in Scotland?
It's a common misconception that cohabiting couples have similar rights to married couples on death. Although there are some rights in place for a cohabitant in Scotland, their succession rights are in fact very limited.
A cohabitant's claim can only be brought on intestacy (where there is no Will) and it must be within six months of death. Conversely, a spouse may make a claim for legal rights when their spouse has died without making a Will and they are also entitled to the same legal rights when there is a Will. A legal rights claim subsists for twenty years following the death. If the spouse is intestate, the surviving spouse is also entitled to financial provision known as prior rights – the wording itself provides an indication of where the priority for the law currently lies. In addition, a cohabitant will not receive more than a spouse would be entitled which gives little consideration to the facets of the relationship such as the duration – it may have lasted longer than the marriage or civil partnership and the extent of the financial interdependence.
Even with reform of this area, the best way to ensure that your estate is divided as you wish is to make a Will. This is true for everyone but particularly those who are cohabiting.
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