21 May 2020

The right of a spouse to inherit is a legal entitlement, but payment to a cohabitant is at the discretion of the court...

When The Family Law Scotland Act 2006 came into force, it abolished the ability for couples to begin to establish marriage by way of cohabitation with habit and repute. Despite that being some 14 years ago, I still, every so often, come across someone who believes that they have a “common law marriage.”

A common law marriage, in its day, would give non-married couples (cohabitants) rights to inherit in the event of death, the same as a spouse. In its stead, s.29 of the 2006 Act introduced rights for cohabitants on death recognising the importance of couples choosing to live and build a life together.

Your right to inherit

That being said, s.29 does not in any way place cohabitants on the same footing as couples who are married. A cohabitant should not receive more than a spouse would. It does not follow, however, that a cohabitant will then receive exactly what a spouse would. It is important to note that there is an upper limit to what the court can order, but no lower limit. Indeed, there are cases where no award has been made at all. The right of a spouse to inherit is a legal entitlement, but payment to a cohabitant is at the discretion of the court.

Where the deceased is still married, but separated
One area where cohabitant claims can be very difficult is where the deceased was still married, although separated from their spouse. There is no legal status of “separated” in Scotland and, therefore, until such times as you are divorced, you are still married. To give some protection to new partners, it is important that a full Separation Agreement is entered into and a divorce pursued in good time.

Quantification of a claim under s.29

Quantification of a claim under s.29 is difficult. The 2006 Act gives the court a great deal of discretion and that, coupled with the cost of a court action means that there are very few reported decisions from which to take guidance. Expert advice is necessary to calculate both prospects of success as well as quantification of any claim.

Timescales for raising actions

The timescale to raise an action under s.29 is just 6 months from the date of death. That is a hugely tight timescale for anyone, least of all someone who is grieving. The court currently has no discretion to allow claims in out of time. Early advice is therefore essential.

It is also important to note that a claim can only be raised under s.29 if the deceased died intestate - without a Will. Where there is a Will, then the Estate will be divided according to its terms and any surviving cohabitant cannot claim in the estate. As such, it is, more straightforward and more cost and time efficient to ensure that you have an up to date and accurate Will outlining your wishes in the event of your death. Our “Where there’s a Will, there’s a Way Q & A” video addresses typical questions often asked of our Will, Estates & Succession Planning team: CLICK HERE.

It is also never too early to seek advice from a specialist family lawyer about your relationship.

The Scottish Law Commission are currently reviewing cohabitation law in Scotland and it is highly likely that cohabitation claims on death will change. Hopefully that will bring more clarity and certainty for cohabiting couples. For now, however, the 2006 Act will continue to apply.

Contacts:

Debbie Reekie Senior Associate der@bto.co.uk / 0131 222 2948