Over the last eight years the legal position for cohabitants has changed significantly. In 2006 the law in Scotland was changed to introduce a set of basic rights to protect cohabitants, either when their relationship breaks down, or when a partner dies without having made a Will. However the law is very clear that couples living together do not have the same rights as married couples and civil partners.
Understandably, when people first move in together they rarely want to think about what might happen if things go wrong. Separation and death are not popular subjects of conversation! Our experience is that few couples have the forethought or the inclination to enter into a cohabitation agreement prior to living together.
Yet it is important for a cohabitant to consider what his or her rights will be if the worst happens. What if one partner wants the other to leave the family home following separation? What would happen to a partner financially on separation if most of the family assets are held in the other partner's name? What happens if one partner has made significantly higher financial contributions to a jointly owned property? What happens if a cohabitant if his or her partner were to die unexpectedly without having made a Will?
In the event of the relationship ending by way of separation or death cohabitants have limited rights and very strict deadlines within which to make a claim. So clear legal advice at an early stage is vital.
Where a cohabiting couple separates, a cohabitant can claim a sum of money from their partner if they can show that they have suffered economic disadvantage in the interest of their partner or their children and if that partner has derived an economic advantage from these contributions. The court can also have regard to the economic burden of caring for any children. A claim must be raised no later than twelve months from the date of separation. Given that such claims are discretionary, these types of disputes can be lengthy, expensive and the outcome uncertain.
To provide certainty and avoid future dispute, cohabitants may wish to consider drawing up a cohabitation agreement setting out clearly an agreed position regarding what will happen to the couple's assets (such as a jointly owned property) in the event of a separation.
It is particularly important that cohabitants think about Wills. Where a cohabitant dies without a Will, the surviving partner, assuming they meet certain criteria, is entitled to make a claim against their partner's estate and this must be done within six months of their partner's death. Many cohabitants fail to make provision for their partner by making a Will; perhaps wrongly assuming that their partner is a 'common law husband' or 'common law wife' and will be treated as a spouse.
Some thought now could save heartache, difficulties and legal fees at a later date.