03 December 2018

The Law Society of Scotland has launched a four week consultation seeking the views of members and interested stakeholders on the law providing rights for cohabitants. The main issues to be discussed surround sections 28 and 29 of the Family Law (Scotland) Act 2006.

In relation to section 29, one question being raised at the consultation is whether the time period for an application should be extended from 6 months of the date of death. A further question is raised regarding the extent of section 29 claims and whether they should be extended to testate claims and the Law Society of Scotland is calling for views on the matters by Monday 3 December 2018.

Time period for an application under section 29

Following the Scottish Law Commission’s (SLC) recommendations on changes to succession law, and the Scottish Government’s recent consultation on the law of succession, the government has decided that the time limit for a surviving cohabitant to make a claim under section 29 of the 2006 Act will be extended from six to 12 months from date of death. Under the current section 29, if a cohabitant dies intestate, the court has no discretion to extend the 6 month period for a surviving cohabitant to bring a claim for a share of the estate. The short time limit contrasts the 12 month limit under section 28, which deals with claims in cases of separation.

In a practical sense, this 6 month time limit has been argued to cause unnecessary litigation as it is not sufficient to allow the parties to negotiate a settlement. It also can mean having to raise and then sist an action immediately, as it is not long enough to gather all necessary information. In cases of separation, it seems that even with the 12 month limit, proceedings are often raised to beat the time bar but still sisted for negotiations. Most importantly, the 6 month limit dismisses the fact that grieving may take longer, cohabitants may miss the deadline as a result of this and this is the basis for the government’s recent extension of the time limit to 1 year.

Differing views on the time limit still persist. Suggestions have been made that linking the time limit for a claim following the death of a cohabitant to the grant of confirmation would be more reflective of the time taken to have executors appointed. An alternative to this would be a reform of the provision to allow the court discretion to extend the time limit as they see fit in the circumstances. Even despite the changes made as a result of its recent consultation on the law of succession, the Scottish Government recognises that there are competing views on the matter, and has therefore decided to 'consult on a fresh approach to co-habitants rights'.

The extent of section 29 claims

Currently, cohabitants can only claim where the deceased died intestate. This contrasts the Inheritance (Family Provision and Dependants) Act 1975, applicable in England and Wales, which allows cohabitants to claim regardless of whether the deceased was intestate or testate. At the time of drafting the 2006 Act, concerns were raised that giving the courts power with regards to a discretionary share of a deceased cohabitants estate would effectively be allowing cohabitants a right of recourse to the courts which spouses did not have, confusing the law in this area. The Scottish Government in their publication on the outcome of their consultation on the law of succession have dubbed the suggestions by the SLC in 2009 to extend section 29 provisions to testate cases as ‘controversial’ and have stated that they will make no changes in the area.

Some are of the view that extending section 29 claims to testate cases also causes unnecessary confusion in that individuals can write a Will or marry or enter into civil partnership to give ‘partners’ the security they need on succession. Indeed, extending section 29 claims to testate cases may interfere with freedom of testation (even though Legal Rights does not allow absolute freedom of testation in Scotland). Some suggestions have been made to extend section 29 to testate cases only where the Will had been granted before the start of the cohabitation relationship in question. More discussion will be needed on this issue, although it appears that the overwhelming view is to keep section 29 as it is - applying to intestate cases only.

Overall, it will be interesting to hear the outcome of the Law Society of Scotland’s consultation. Until then, the discussions highlight the importance of making a Will, to allow cohabitants certainty on the death of their ‘partner’. Those cohabitants who have, or think they have, a claim on death or separation, it would be wise to take legal advice at the earliest possible opportunity.

Contacts: 

Victoria Kerr, Trainee Solicitor vke@bto.co.uk T: 0141 221 8012