Law Society launches rights of cohabitants consultation

We are asking the legal profession and interested stakeholders for their views on the law providing rights for cohabitants.

Our consultation aims to stimulate discussion within the legal profession and among other stakeholders and is seeking views in relation to reforming cohabitants’ rights.

The Family Law (Scotland) Act 2006 provides certain rights for cohabitants when cohabitation ends otherwise than by death (section 28) and on the death of a cohabitant who dies intestate and is survived by a cohabitee (section 29). We are not undertaking a full review of the law relating to cohabitation but would welcome views and experiences on both sections of the Act.

John Kerrigan, member of the Law Society of Scotland’s Trusts and Succession Sub-Committee, said: “As the law presently stands, it is possible for the claim of a ‘deserving cohabitee’ to be time barred. We will explore whether the common law claim of unjustified enrichment should remain available to parties who have separated where the one-year period for a claim has been missed.

“We will also explore linking the time limit for a claim following the death of a cohabitant to the grant of confirmation. This would more appropriately reflect the time taken to have executors appointed given that this will be done prior to a grant of confirmation being made.

“In addition, we will consider the possibility of suggesting an extension to the right to claim to estates where the deceased died with a will.”

Scottish solicitors and interested parties are asked to respond to the consultation by 10:00am on Monday 3 December 2018.