In 2006, legislation was introduced in Scotland aimed at providing cohabiting couples with greater rights when their relationship ends by separation or death. However, it is widely accepted by most family lawyers that public awareness of the Family Law (Scotland) Act 2006 (‘the 2006 Act’) is fairly limited.
Many people believe that if they live together, they will be treated the same as a married couple but that is not the case. There is no such thing as a common law marriage in Scotland.
Let me talk you through some of the implications, and answer the most common questions…
Scottish law defines ‘cohabitants’ as unmarried couples who live together as if they are husband and wife or same sex partners who live as if Civil Partners.
In the unlikely event that a case goes to Court, couples may have to prove that they were cohabiting as a couple and not simply sharing a home. There is no fixed timescale for how long you have to be living together and sometimes a very short period of time will be sufficient, however the longer the couple have lived together, the more likely it is that they will be recognised legally as cohabitants.
The law does not treat cohabiting couples the same as married couples or civil partners and there is no automatic entitlement to any funds or assets.
However, you can still make a financial claim.
In order to do this, you will have to show that you suffered an economic disadvantage while living together. Secondly, you also need to show that your former partner received an economic advantage during that period.
However, importantly, any financial claim under the 2006 Act must be made within one year of the date the couple cease to cohabit. That means that Court papers must be drafted, lodged with the relevant Court and then served on the former partner within that one year period, otherwise the right to make a claim will be lost.
If you cohabit with your partner in a house which they own or rent (as opposed to you owning or renting it jointly), you do not automatically have Occupancy Rights if you separate. However, you can apply to the Court to remain. If the Court is satisfied that you should be granted Occupancy Rights, this is likely to be for an initial period of six months, although you can apply for this period to be extended.
If the cohabitant does not own the property (or is not named on the lease for a rented property) and they are subjected to domestic abuse by the other cohabitant, then they can apply to the Court for an order to remove the other cohabitant from the property. This is called an Exclusion Order and can be applied for even though that person is the owner of the property.
Depending on where the children will live following your separation, it may be possible to claim child maintenance if you are the parent with care. More information on eligibility and a child maintenance calculator can be found here: www.gov.uk/calculate-child-maintenance
It is also possible, in some cases, to apply for an additional capital sum from your former partner to reflect the financial implications of raising a child under the age of 16. This is completely separate to the child maintenance system and if it cannot be agreed by negotiation, then you would need to apply to the Court within one year of the date you stopped cohabiting. There is no automatic entitlement to a specific amount over and above the child maintenance payment and it will very much depend on your personal circumstances.
If you have been cohabiting and one of you die without having made a Will (‘intestate’), you can indeed make a claim on the deceased’s estate. Again, strict time limits apply here and such a claim must be made within six months of the date of death. This only applies where there is no Will.
The Court has a wide discretion in deciding how much to award you from the estate. The Court can award a capital sum payment or the transfer of an asset, such as a house or car. The Court will look at the nature and size of the estate and also any other financial benefits you may have received from their death, such as payment from the deceased’s pension fund as well as any claims which members of the deceased’s family may have on the estate.
There is a limit to how much the Court can award you and importantly, you cannot benefit from more than you would have been entitled to had you been the spouse or civil partner of the deceased.
In order to avoid potential uncertainty (and legal fees) at a later date, it is wise to consider having a formal Cohabitation Agreement prepared. This is a legal contract and can set out your intentions in the event of separation and/or death.
Cohabitation Agreements are particularly advisable if you are buying a property jointly and where one is contributing all or significantly more of the deposit than the other. They are also worth considering for couples who have perhaps been married previously and who have children from a previous marriage/relationship.
For a free, no-obligation discussion about your situation, please get in touch…
I think it is too easy for lawyers to smirk or eye roll at some of our clients’ beliefs about divorce. At the end of the day, most have never been through the process before, so why should they know the intricacies of it - isn’t that why they come to see us? TV shows, films and the tabloids also don’t help at times, as factual legal summaries rarely make for compelling viewing or punchy headlines!...18 January, 2021 No comment