Scots law matters: Cohabitation

In this issue, Inverness solicitor, Sarah Lilley explains what steps cohabitants may wish to consider when deciding to move in with a partner.

"I am moving in with my partner. We are not married or in a civil partnership, so I want to understand our rights if the relationship ends."

More than ever before, couples in Scotland are choosing to live together rather than marry. Most people who get married or become civil partners understand that they are also entering into a legal contract - which brings with it certain rights and responsibilities. However, people may be far less aware that cohabitation can give rise to legal consequences too. Many are surprised to learn that their former partner, with whom they have never entered into any contract, may be entitled to make a financial claim against them. 

In Scotland, the law in relation to cohabitation is set out in the Family Law (Scotland) Act 2006, which gives cohabitants certain limited rights. There is no minimum length of time that a couple must live together before they are eligible to make a financial claim, but the length of the cohabitation; the nature of their relationship during that time; and the nature of any financial arrangements or shared finances during that time are all factors that the court may take into account.

The legislation is not straightforward and does not give cohabitants automatic legal rights in the same way that spouses and civil partners have. In order to make a financial claim following separation, a cohabitant must prove that they have suffered economic disadvantage as a result of the relationship (either in the interests of the other cohabitant and/or their child) or that the other cohabitant has been economically advantaged as a result of the cohabitation. The court must consider the extent to which any economic advantage is offset by the economic disadvantages suffered by the other cohabitant during the relationship, and vice versa. So, for example, if one party has benefitted financially from the relationship but has required to give up their employment to care for a child of the relationship (or any child accepted as a child of the family), this may well offset any economic advantage.

When a cohabiting relationship breaks down, there is no formal process involved in bringing it to an end – it is simply over. If neither party makes a claim against the other within twelve months following the date they stop cohabiting, then they lose the right to do so.

The law also gives cohabitants certain limited rights in the event of the death of the other party, but only where they have died intestate (i.e. without a valid will). In those circumstances, the surviving cohabitant has just six months from the date of death to make an application to the court.

Cohabitants can take steps, at any time, to protect their assets in the event of a future separation by entering into a cohabitation agreement.  Similar to a pre-nuptial agreement, a cohabitation agreement is a formal contract – prepared by a specialist family lawyer - detailing what is to happen to various assets in the event of a separation. It can also be used to regulate ownership of and contribution to the purchase of property, or to regulate financial responsibility for aspects of household expenditure.  The agreement can be tailored to meet the needs of the particular couple and can be as complex or straightforward as their financial arrangements are. Ideally, a cohabitation agreement should be entered into before moving in together, or as soon as possible thereafter.

The Family Law (Scotland) Act 2006 has been criticised as being out of date, unclear, and overly complicated. It is currently under review by the Scottish Law Commission and a draft Bill has been prepared. If the law is changed, giving cohabitants more options to make financial claims against the other on separation, then it will be more important than ever for cohabitants to take steps to protect their assets and to be clear about the financial implications in the event of a separation. 

If you need advice about your rights as a cohabitant, a trusted Scottish solicitor can help. To find a solicitor in your area visit our online Find-a-solicitor tool at www.findasolicitor.org.uk.

This is not definitive legal advice, and you should seek legal advice on your own particular circumstances.