The traditional model of how families live their lives is changing.  Perhaps one of the most significant shifts in recent years has been the increase in couples choosing to cohabit, rather than get married or enter into a civil partnership.  Although cohabitation is becoming increasingly common, the legal consequences of cohabitation are still, in our experience, widely misunderstood. 

On the one hand we often encounter those who believe (incorrectly) that there is a concept of “common law husband and wife” which, in the right circumstances, would put a long-term cohabitant on the same footing as a spouse.  On the flip side, we come across a lot of cohabiting couples who are operating under the misconception that by choosing to live together rather than marry; they are avoiding any legal ties.  This could not be further from the case.

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There is, quite simply, no such thing as a common law husband and wife.  However, following the coming into force of the Family Law (Scotland) Act 2006 on 4th May 2006, cohabitants have rights both in the event of separation; and in the event of death where the deceased dies without a Will. 

So what rights do cohabitants have?

Insofar as separation is concerned, cohabitants have a right to make a financial claim against the other party.  There is no presumption or guarantee that a separated cohabitant will actually succeed, but those living with their partner need to be aware of the possibility especially as any claim must be made within one year of the separation. 

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That is not to say that making a claim, or the issue of how a court would determine such a claim, is straightforward.  For married couples, a matrimonial “pot” will be shared between the parties.  There are clear guidelines in the legislation surrounding what constitutes matrimonial property, and how to share it fairly.  There are a variety of orders which a court can make including transferring assets, awarding a capital sum and pension sharing.  Whilst there are complexities as with any legal situation, the legal framework is clear.   

For separating cohabitants, there is no concept of “cohabitants’ property”; no entitlement for cohabitants to share a “pot”.  What a cohabitant can claim is a capital sum; and a capital sum is the only order a court can make.  A capital sum will only be awarded on the basis of economic advantage and disadvantage and/or the economic burden of caring for a child of the relationship following the relationship coming to an end.

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In assessing economic advantage, what is being considered is whether the defender in any court action has received an economic advantage from financial or non-financial contributions made by the pursuing party.  The court also needs to consider whether the economic advantage is offset by economic disadvantage suffered by the defender as a result of contributions to the pursuing party or any child.  In assessing economic disadvantage, the test is whether any disadvantage has been suffered in the interests of the defender or any child, and if so whether it is offset by advantages resulting from contributions made by the defender…so not complicated at all, then!

What the legislation gives the court is a huge amount of discretion in cohabitant cases, and even though a Scottish cohabitant case has made it all the way to the Supreme Court in London, it is still pretty difficult for lawyers to predict what the outcome might be, which is obviously unsatisfactory for all concerned.  The extent of the discretion is not the only failing.  Because the court can only award a capital sum, it means that if cohabitants jointly own heritable property together, then it must be resolved in the context of negotiation, or by separate court action.  In a separate court action, one can seek a sale of a jointly owned heritable property; but not a transfer which significantly limits options. 

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There have not been that many cohabitant cases determined by the courts, but the first few related to fairly minimal claims.  The biggest award now however was close to a million pounds, so cohabitant’s claims can be serious stuff.

On death, if a cohabitant dies without a Will then the surviving party can make a claim for provision from their estate.  The court has wider power in terms of the orders they can make on death – for example, one of the things the court can do is order transfer of a property to the surviving cohabitant.  In considering what orders to make the courts again have a lot of discretion and must consider things like the value of the estate; any other claims there might be on the estate (for example, from children); and any benefits already received by the survivor arising from the death (such as pension provision).  Time pressures are even more acute when a cohabitant dies as any claim must be made within 6 months; although the Scottish Government has promised to extend the time period to one year fairly soon.

The good news for cohabitants who are worried about the legal consequences of cohabitation is that it was always intended that there would be freedom to “opt out” and this can be done by a properly drafted Agreement; and in the case of death by ensuring that there is a Will in place.

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Is same sex any different?

So how does this effect people who are in a same sex relationship? Those in a same sex relationship are in no different position when it comes to financial provision than those in heterosexual relationships.  That applies both in relation to marriage; and in relation to cohabitation. 

If there are any complexities for same sex couples, these are perhaps more in the arena of children of the relationship.  Just as family structures are changing; so are the ways in which we bring children into a family unit and the law is still playing catch up.  For a heterosexual couple, if the mother’s partner is named on the birth certificate he will (since 4th May 2006) automatically have parental rights and responsibilities in respect of the child. 

For any child conceived by a same sex female couple after 6th April 2009 the parent who is not the child’s biological mother can now go through a very straightforward process of obtaining parental rights and responsibilities providing certain criteria is met.  For any child conceived prior to that date, or for a couple who does not meet the criteria (for example, if conception was not facilitated in a registered UK fertility clinic) the position is very different.  The non-biological parent can find themselves post-separation having no automatic rights to see their child, or to have a say in important decisions in their child’s life.  Whilst this can be corrected by a Court in due course, that is not an easy road for anyone to have to travel.    

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Sally Nash, Partner, Family Law

Mobile: 07487 802488 
Direct Dial: 0131 285 4793 
Email: snash@gilsongray.co.uk 

Web: www.gilsongray.co.uk

Sally is a Partner in Gilson Gray's Family Law Team. She has worked exclusively in the field of family law since qualifying as a solicitor in 2004 and advises on a wide range of family law issues.

Sally is dual qualified in English and Scots Law and enrolled as a Solicitor in England and Wales as well as Scotland. She is qualified to practise collaborative law and is a member of the Family Law Association. Sally is accredited by the Law Society of Scotland as a specialist in the field of Family Law.

Sally has extensive experience in advising on the broad scope of financial and other issues arising from relationship breakdown. Although Sally enjoys an extremely high success rate in negotiating such matters on behalf of her clients, she is also highly experienced in the conduct of litigation. In light of Sally's dual qualification, and her expertise in jurisdictional matters, her caseload has often involved those with a cross-border or international element.

One of Sally's specialisms is wealth protection and she acts regularly in the negotiation and preparation of cohabitation, prenuptial and post-nuptial agreements.

In the most recent Chambers UK Guide, Sally is described as "doing a quality of work that partners elsewhere can't reach".