06 February 2019

Recently, I have found many of my friends choosing to ‘move in’ with their respective partners for the first time in their lives. I’m sure you also have come across this trend at some point in your life too. It may have been a friend, a family member, or it may even be yourself!

We lawyers somewhat un-romantically call the concept ‘cohabitation’ – living together as a couple, without marrying or entering a civil partnership. There are many reasons to choose to cohabit. Perhaps there is a hope that the person is ‘the one’ who you will spend the rest of your life with. Perhaps there is a contemplation of marriage. Or maybe you are choosing to live with your partner due to financial struggles or you are in between places of your own. No matter what the reason, you will appreciate that this is a big decision being made. However, you should also be aware of the legal implications of such a decision.

In Scotland, it is accepted that some couples may choose to live together, either without immediately marrying or never marrying. Therefore, the law has adapted in order to provide some (although, certainly not all) of the same entitlements to ‘cohabiting couples’, which married couples naturally receive.

For example, where a couple decide to break up, the law gives each individual the right to make a claim, where they have been financially disadvantaged in the interests of the other, or where your contributions to the relationship have financially benefitted your partner but not yourself. This is similar to how assets may be divided following divorce of a marriage. Alternatively, in the event that one of the cohabitants dies without a Will, the other is entitled to claim a proportion of the deceased’s assets – just as you would expect a spouse to receive the estate of their partner on death.  However, this right is not automatic, includes a time limit and involves going to court.

It is a matter of personal preference whether this sounds acceptable to your own circumstances. You may be happy with that arrangement and wish for your partner to receive as much as possible. Or, you may not wish for the law to dictate what happens to your assets if you were to separate or die. 

In either event, it is always best to put your preference in writing. This will make things more clear and will reduce the likelihood of the matter ending up in court with your partner claiming for a proportion of your assets, which could cause additional distress to what may be a difficult time already to either you, or your family. Therefore, the default position of the law can be defeated in both situations.

For separation, the couple may choose to draft a Cohabitation Agreement. This is a legally binding document which lays down the ‘ground rules’ of what should happen, should the couple choose to later separate. Similarly, for death, you are able to draw up a Will. A proper and valid Will automatically defeats the law’s presumption that a cohabitant would wish to share their assets with their cohabitant if they died.

Cohabitation Agreements and Wills might not scream “Perfect Valentine’s Present”, but having seen the end results of not having either, we really believe that the kind and loving thing to do is to consider both. After all, it is much easier to make fair decisions with each other in mind during a honeymoon period, rather than at the other end when more disgruntled emotions may be at play.

At BTO, we have entire teams dedicated to each of these situations and solicitors who specialise in drafting Cohabitation Agreements and Wills to suit your specific needs. Whether you are wishing to put these documents in place to ensure that your new cohabiting partner does not have a claim, or to clarify exactly what you would prefer for them to receive, we are ready to assist and ensure you have considered every potential outcome. Alternatively, if you are a cohabitant wishing to review your options, following the separation or death of your partner, we would be delighted to assist you and offload some of the stress from you.

Contacts:

Beverley Addison, Solicitor bea@bto.co.uk T: 0141 221 8012