Watching a news piece this morning about the 50th anniversary of the Pride Festival, I was particularly struck by the comments of one participant, who commented “During the AIDS epidemic it was not uncommon for the parents of the person who had died to come to their house immediately and kick out their partner.”
The piece remarked that things have changed today. The concept of civil partners emerged. Scotland now legally accepts many types of family unit, regardless of sexual orientation, gender, or marital status.
Thankfully, there are now remedies available to couples who live together in a situation where one passes away.
Section 29 of the Family Law (Scotland) Act 2006 enables the surviving partner of a cohabitant who has passed away to make certain financial claims. One of the possibilities available to the court is to transfer the couples’ home to the surviving spouse, where that property is owned by the deceased.
Whilst this legislation marks a positive step forward in terms of securing rights for people who choose not to marry, there are important limitations.
- Firstly, the couple had to satisfy the definition of cohabitant before any claim can be made.
- The legislation contains a strictly applied time limit – any claim must be raised within 6 months of the date of death.
- A surviving cohabitant cannot receive more than they would have received had they been married to their partner.
In my practice I have dealt with many claims by bereaved cohabitants. These cases are difficult and need to be progressed at a time when my client is in a state of shock, grieve, and fear about what the future holds.
It seems to me that the law has progressed significantly over the past 50 years, but there is still a long way to go.
One of the privileges of being in practice at Harper Macleod is that I am able to assist people who find themselves in this situation, supported by a team of colleagues who understand the motion nuance as well as who the law ought to be applied.
This weekend’s Pride celebrations mark an opportunity to celebrate how far things have progressed, but I know that I will be thinking about progress still to be made.
If you are interested in reading other published articles on this topic, you can find links here:
Crofting Law and Family Law in Shetland
When do I need to support my children after separation?
A return to the Court room for Child Welfare Hearings in Scotland
Outer House decision on expenses
Recent contact action highlights importance of legal and medical advice in surrogacy cases
Do I need consent to take my child on holiday abroad with me? A guide to what you need for the summer holidays
The separation of cohabiting couples
A concern has been made about my child to the social work department – what might I expect?
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