Family Law – Cohabitation
- The concept of ‘common law marriage’ is not recognised in Scots law.
- The Family Law (Scotland) Act 2006 introduced and conferred rights to cohabitees at the end of their cohabiting relationship.
- The rights of cohabitees are not the same as those a married person would have.
- Generally if one cohabitee has suffered an economic disadvantage and the other has derived an advantage, then the disadvantaged party may have a financial claim against the other party at the end of the co-habitation period e.g. if a house is owned by one party, and their cohabiting partner invested money into it, they would be advantaged by this contribution. At the end of the relationship the person who had invested the money but did not have any title to the house would have suffered a disadvantage. This person may have a potential claim.
- Certain conditions must be satisfied and this is an area of some complexity. It is important that you seek legal advice quickly as there is a time limit of one year in which to make a claim to the Court following the breakdown of the relationship.
- Some couples may wish to opt out of the legal framework which would be applied to their cohabiting relationship. Couples are free to enter into Agreements which would regulate any potential claims or how property ought to be divided in the event of a separation in a similar way to a prenuptial agreement.
- Cohabiting couples must give consideration to the preparation of a Will. If you are cohabiting with your partner, you will not have the same automatic rights to inherit which would apply on marriage. It is important that your wishes are reflected in a Will to prevent the need for what can be an expensive Court application on death. You have a period of 6 months after death to make such an application to the Court if no Will exists.
- Our team are experienced in dealing with such matters and would be able to fully advise you in relation to any claim you may have.
FREQUENTLY ASKED QUESTIONS IN RELATION TO COHABITATION
- What exactly does “cohabitation” mean?
The legal definition of cohabitation is: a man and a woman who are (or were) living together as if they were husband and wife; or two persons of the same sex who are (or were) living together as if they were civil partners. As efined by the Family Law (Scotland) Act 2006.
- What are my rights on the breakdown of our relationship?
The rights are contained within the Family Law (Scotland) Act 2006. However, this legislation has been interpreted by the courts and guidance has to be sought through previous court precedents. Your rights as a cohabitee are not comparable to the rights at the end of a marriage, but there are financial rights that you may have to seek support and a share of property built up during the relationship.
- Is there a time limit for me to make a financial claim following our separation?
There is a time limit of one year to make a claim to the court.
For more information or advice please call 01309 672216 or email firstname.lastname@example.org