Cohabitation Agreements in Scotland
If you are a couple who are thinking of moving in together or have been living together in a committed relationship for years and have chosen not to enter marriage or a civil partnership, you should consider legally recognising your rights through a cohabitation agreement.
Benefits of Cohabitation Agreements
Considering entering a cohabitation agreement with a partner can provide numerous benefits to both individuals. Its purpose is chiefly to deal with what should happen in the (hopefully unlikely) event that the relationship breaks down or in the event of the death of one the couple. A cohabitation agreement tailored to your needs can be as detailed or as simple as you would like. It can address issues like payment of household expenditure or who should retain particular assets in the event of a separation. Cohabitation agreements can not only offer protection but also peace of mind.
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Frequently Asked Questions about Cohabitation
Yes, it is possible to make a financial claim seeking a specified amount of money following a separation where you have not entered marriage or a civil partnership with your partner. It is possible to do so following the Family Law (Scotland) Act 2006 being introduced.
Section 28 of that Act now provides that it is possible for a cohabitant to make a claim against their former partner within a period of 12 months from the date of separation. The court may order a capital sum to be paid by one cohabitant to the other in full or by instalments. The court will consider whether the applicant has suffered an economic disadvantage in the interests of their former partner, or their child. The court will also consider whether the former partner has gained an economic advantage as a result of any contributions made by the applicant. If such claims are not brought to the court within a period of 12 months of the date of separation the cohabitant will be time barred from making such a claim.
The term contributions are not restricted to financial contributions only. Contributions may also include non-financial contributions such as maintaining the home, giving up a career to raise children or assisting in developing a business interest of their partner.
A divorce is the legal termination or end of a marriage otherwise than by death by the granting of a Decree of Divorce. Dissolution is the term given to describe the legal termination of a Civil Partnership. A divorce or dissolution will be granted by the Sheriff Court or the Court of Session.
In a separation where cohabitants jointly own a property, as joint title holders both parties, on the face of it, own an equal share in the property. Under the Family Law (Scotland) Act 2006 it is not possible for one cohabitant to request the court to grant an order transferring the property into their sole name. It is however possible to enter an agreement without going to court for this to happen. If an agreement cannot be reached between the parties, it is possible for either party to insist upon the sale of the property and a share of the proceeds of sale.
Contributions can be regarded as both financial and non-financial. The definition of contributions is a non-exhaustive list but may commonly include:
- Paying a disproportionate amount towards a deposit for the purchase of a property.
- Giving up a career to start a family.
- Accepting the role of primary carer for the children during the course of the cohabitation.
- Renovating or contributing to renovations of a property owned by their partner.
- Investing in the other cohabitant's business interests or property.
Under Section 28 (2) (b) of the Family Law (Scotland) Act 2006 it is possible for a cohabitant to seek the payment of a capital sum from their former partner requiring them to pay an amount in respect of any economic burden of caring, after the end of the cohabitation, for a child of whom the cohabitants are the parents.
Typical examples of this may include the payment of childcare costs, private school fees or a child's extracurricular activity costs.
Section 26 of the Family Law (Scotland) Act 2006 provides that it shall be presumed each cohabitant has a right to an equal share in household goods acquired (other than by gift or succession from a third party) during the period of cohabitation. This is however rebuttable, meaning the presumption can be challenged.
Household goods means any goods (including decorative or ornamental goods) kept or used at any time during the cohabitation in any residence in which the cohabitants are (or were) cohabiting for their joint domestic purposes, but does not include, money, securities, any motor car, caravan or other road vehicle, or any domestic animal.