Whether married, cohabiting, a same sex or an opposite sex couple, understanding the different consequences for finances and children on relationship breakdown is of critical importance.
Society still looks for the marriage contract in order to afford couples a presumption of equal sharing of assets acquired during a marriage (some exceptions apply). Divorcing couples in Scotland benefit from a relatively predictable regime of property sharing in all but the most complex cases. But what of those couples who choose not to marry?
Relationship breakdown of a cohabiting couple is much less predictable as to financial consequences and the remedy for financial provision arising remains limited and "grey" such that there is a hesitation in the profession to encourage a client down the route of seeking to establish their claim by legal proceedings. It is unlike a married couple where a financial claim is without limit of time, but must be pursued before a divorce is granted.
A couple who merely lived together must act within a time limit of one year from the date they cease to live together or a cohabitant's claim is lost. Negotiations can be slow and protracted and the only way to protect a claim is to embark on costly court proceedings (something which is often unaffordable to the claimant who has no element of predictable success).
It was never intended by the legislative authorities that a cohabiting couple should have equality with those who had entered a marriage contract but if we are moving towards a cohabiting nation the law may require to reconsider outlining a more certain framework for sharing the wealth acquired during such a partnership.
Until then difficult conversations between couples who decide to commit to cohabitation need to be had so that there is clarity on what they would expect of each other if the relationship ends. In Scotland the law will enforce the terms of any contract which is entered in to between parties for so long as it is not for something illegal.
With a bit more considered thought, couples can choose to enter a written cohabitation agreement. If this sounds like something your relationship could benefit from, please contact me on the details below.
Fiona Sasan is a Law Society accredited specialist in Family Law at Morton Fraser, a Collaborative practitioner and Family Law Arbitrator.