Society launches debate on reforms to cohabitant laws

Views on the law providing rights for cohabitants are being invited from the legal profession and interested stakeholders by the Law Society of Scotland.

The Society has opened a consultation which aims to stimulate discussion on possible reforms to the law, including the itme limits for bringing financial claims and whether a claim could be permitted in the face of provisions in a will.

Under the Family Law (Scotland) Act 2006 cohabitants have certain rights when cohabitation ends otherwise than by death (s 28) and on the death of a cohabitant who dies intestate and is survived by a cohabitee (s 29). The consultation is not a full review of the law relating to cohabitation but welcomes views and experiences on both sections of the Act.

John Kerrigan of the Society's Trusts & Succession Subcommittee commented: "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."

Click here to access the consultation. The deadline for responses is 10am on Monday 3 December 2018.