30 October 2021

As we continue to emerge from the restrictions imposed on our lives, the impact that the covid-19 pandemic has had on us as individuals, and on our society, seems quite surreal. From the requirement to stay at home, to wearing face coverings, there are many aspects that come to mind when reflecting back. It is safe to say the pandemic has touched every part of our daily lives, but one of the less well-known effects relates to couples’ rights under family law in Scotland.

With engaged couples having their weddings postponed due to covid-19, more people were living as cohabitants for longer than they had anticipated. Similarly, given the restrictions on socialising with those from different households, many people decided to move in with their partner, perhaps earlier than they might have otherwise done. Whilst marriage by cohabitation and repute was abolished in Scotland in 2006, the law regulates the relationships of those couples who are cohabitants. The legislation in this area gives certain rights to cohabitants if their relationship breaks down, or their partner dies.

What are cohabitants rights in Scotland?

If you and your cohabiting partner separate, you may have a right to claim a capital sum payment from your former partner if you can demonstrate that your partner has derived an economic advantage from your contributions. Additionally, you may also have a right to a capital sum from your former partner if you have suffered an economic disadvantage in the interests of your partner or your children. The Court would also look at whether any economic advantage of your partner is offset by any economic disadvantage your partner has suffered in your interests or the interests of the children. Similarly, the Court would also determine whether any economic disadvantage suffered by you is offset by an economic advantage you have derived from the contributions of your partner.

If your cohabiting partner passes away, the position is different. You can only claim a capital sum or transfer of property from your partner’s estate if they died with no Will. When determining whether an award should be made, the Court will consider the size and nature of your partner’s estate, any benefit you have already received following your partner’s death, the nature and extent of any other person’s rights against your partner’s estate, and any other matter the Court considers appropriate. It is important to bear in mind that you will not receive an amount from your partner’s estate which is more than you would have been entitled to receive had you and your partner been married.

Who does the law apply to?

The law of cohabitation applies to anyone who satisfies the statutory definition of ‘cohabitant’. In essence, cohabitants are couples who are living together as if they were married or in a civil partnership. This excludes platonic relationships and other types of family relationships. There are various factors that the Court will consider in determining whether a relationship is a cohabiting one, including, the length of the relationship, the couple’s financial arrangements, and the nature of the relationship.

Are there any time limits?

Yes, it is very important to be aware that there are strict time limits in which you can bring a claim following either the breakdown of your cohabiting relationship or the death of your partner. You only have a year to bring a claim following the breakdown of your relationship, and an even shorter period of six months if your cohabitant unfortunately passes away. You should therefore contact a solicitor as soon as possible if you find yourself in this position.

What if I don’t want this law to apply to my relationship?

In Scotland, if the cohabiting couple decide they do not want the law of cohabitation to apply to their relationship then they would need to enter into a written agreement regulating the terms of their relationship. This is known as a Cohabitation Agreement. This gives the couple the opportunity to make clear provision for the future should the worst happen. If you wish to consider a Cohabitation Agreement, you should seek independent advice from a family law solicitor.

This area of Scots law is currently under review by the Law Commission, and the law may accordingly be amended in due course. The Law Commission’s Report containing their recommendations for law reform has not yet been published, but you can read the discussion paper on the Scottish Law Commission’s website.

Our specialist team of family law solicitors at BTO can assist you with all aspects of cohabitation law. Please contact a member of our team for further information.

This blog does not constitute legal advice and is intended as general guidance only.

Lesley Gordon, Partner: lxg@bto.co.uk / 0131 222 2939