We’ve now had the Family Law (Scotland) Act 2006 for more than 15 years. The law in Scotland on cohabitation is presently under review. Choosing not to get married or enter into a civil partnership is increasingly prevalent. Yet, we still come across many clients who are unaware of their rights as “cohabitants”. “Common Law Marriage” is something which is assumed by some to exist in Scotland: it does not.
In Scotland, we have a restricted framework of rights for cohabitants. Section 25 of the Family Law (Scotland) Act 2006 defines a cohabitant as either member of a couple consisting of:
- A man or woman who are (or were) living together as if they were husband and wife; or
- Two persons of the same sex who are (or were) living together as if they were civil partners.
What makes you a cohabitant?
There is no minimum amount of time that parties require to be living together for the provisions in the 2006 Act to apply. The court has wide discretion in determining whether two individuals are / were cohabitants; the only direction is that the court requires to have regard to three particular factors, namely:
- The length of time the parties lived together
- The nature of their relationship during that period
- The nature and extent of any financial relationship during that period.
The most used element of the framework is that set out at s.28 of the 2006 Act. Here we find the basis for claims by cohabitants where a period of cohabitation ends other than by death. This covers where cohabitants separate. It is very important to remember that there is no automatic entitlement for cohabitants to any award of financial provision following a separation. In fact, the orders which can be sought are limited to:
- An order requiring the other cohabitant to pay a capital sum
- An order requiring the defender to pay a sum of money in respect of the economic burden of caring, after the end of the cohabitation, for a child of whom the cohabitants are the parents
- Any such interim order as the court thinks fit.
In deciding whether to make any of the above, the court will look at whether (and the extent to which) one cohabitant has gained an economic advantage from contributions made by the applicant cohabitant. Further, it will look at whether (and the extent to which) the applicant cohabitant has suffered economic disadvantage in the interests of the other cohabitant, or relevant child of the cohabitants. Crucially, any such application to the court for financial provision must be made within one year of the cessation of the cohabitation; any claim outside this timeframe will not be allowed.
Section 29 provides the means by which a surviving cohabitant can make an application for provision following a death of the other cohabitant. Any such claims must be made within 6 months of the death of a cohabitant. The deceased cohabitant must have died intestate – thus, if there is a Will, it is not possible for a surviving cohabitant to make a claim. The deceased cohabitant must have been domiciled in Scotland immediately before his / her death and the surviving cohabitant must also have been cohabiting with the deceased immediately prior to the death. As with s.28, there is a considerable amount of discretion on the part of the court in relation to claims under this provision.
Unlike married couples, cohabitants do not have an automatic right to occupy the ‘family home’ where a home is owned or leased by a former partner. It is possible however for ‘non entitled’ cohabitants to make an application to the court for a grant of occupancy rights. In such situations, the court may grant
occupancy rights to non-entitled cohabitants for a period not exceeding 6 months, however, these rights can be extended for a further period or periods of up to 6 months.
How we can help – Cohabitation Agreements
In light of the limited statutory protection afforded to cohabitants, it can be useful to consider entering into a cohabitation agreement. These are contracts in terms of which cohabitants can regulate certain aspects of their relationship and they can be useful in providing protection where otherwise former cohabitants may find themselves exposed to expensive claims – either pursuing or defending – with uncertain outcomes.
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