In recent times, an increasing number of couples are choosing to live together for long periods of time, with no plans to get married. This is known legally as cohabiting. In response to the increase in cohabiting couples, the Scottish Government decided that these individuals should be offered protection under the law.
The Family Law (Scotland) Act 2006 (“the Act”) introduced certain legal right and protections to those who choose to live together as couples without getting married were protected. Whilst similar to the longstanding protections for married couples, the provisions of the Act do differ and in reality afford less protection to cohabiting couples.
The Act defines ‘cohabitants’ as unmarried couples who live together as if they are husband and wife. There is no qualifying duration of relationship and in deciding if the Act applies the court will consider the length of the relationship, the nature of it and the financial arrangements between the parties during the relationship.
The Act created two rights – a claim on separation and a claim on death. The individuals seeking to make the claim is required to establish and demonstrate that they have suffered an economic disadvantage through their contribution to the relationship, whilst their former or deceased cohabitee has benefited from a corresponding economic advantage as a result of that contribution.
A claim upon separation
The Act also allows a claim to be brought for a lump sum on separation and for a claim to be made in respect of the financial burden of looking after a child of the relationship. The time limit on the claim is one year from the date of separation. Any claim made can only be sought in the form of a cash lump sum, although payment of that can be ordered by the Court in full or by instalments.
A claim upon death
This only applies on intestacy (when someone dies without a Will) and allows a surviving cohabitant to claim broadly the same financial provision as a surviving spouse.
The time limit on the claim is six months from date of death and where no executor has been appointed in that timeframe there are certain practical issues around raising proceedings to assert the right to claim. The cohabitant can also find his or her claim competing with claims of the deceased’s surviving children and if these children are from a previous relationship of the deceased.
Assessing the value of claim
In a landmark case determined at the UK Supreme Court, it was held that the Scottish Courts when interpreting and applying the provisions of the 2006 Act should focus on the question of fairness and a general balancing out of the economic impact of the relationship rather than attributing each item of expenditure to one party or the other. Put simply, it sought to encourage a more generalised approach rather than a forensic analysis of who spent what over the course of the relationship.
What do I do if I think I have a cohabitation claim?
Given the strict time limits for cohabitation claims, we strongly advise that you do not delay in seeking advice on any issues and potential claim arising from your cohabitation.
To make an appointment with our lawyers based in Alloa and Falkirk, call us today on 01324 622 888 or complete our online enquiry form and let us see how we can help you.