Moving in with your partner? What you should know about cohabitant’s rights in Scotland.

It is common knowledge that spouses, and civil partners, have legal remedies available to them in the event of separation or death. It is perhaps lesser known that, some 12 years ago, the Scottish Government passed legislation which afforded similar, though not as extensive, rights to cohabitants. In a society where living with your partner is commonplace, whether that is in contemplation of one day being married, or with no intention to marry at all, it was recognised that it was of the upmost importance that cohabiting couples were afforded legal remedies. Two of those rights can be briefly summarised as follows:

1. On separation, a cohabitant may make a claim for financial provision against the other within one year after they cease to cohabit.
2. Where a cohabitant does not have a will, and dies, the surviving cohabitant may apply to the court within six months of death for either a capital sum payment or for a transfer of property.

Whilst the rights afforded by the legislation may seem straightforward and common sense, practically speaking unless an agreement can be reached between the parties, or the surviving party and the deceased cohabitant’s estate as the case may be, they have to be pursued by way of a court action which can be an expensive and uncertain process.

In order to avoid this, we recommend that cohabiting couples, or persons who intend to live together, enter into a Cohabitation Agreement to regulate various aspects of their relationship with each other.

Putting this into practice, take our fictional cohabitants, Gerry and Jane. They’ve been in a relationship for four years and own a property together. Gerry doesn’t have a will, and passes away intestate. Gerry has an estranged sister, who under the laws of intestacy, stands to inherit all of his assets including his one half share of the property. Jane’s only choice, at this very stressful time, is to pursue a court action to ask the court to instead transfer her Gerry’s half of the property. It seems very unlikely that Gerry would have wanted Jane to go through this. This could have been avoided if they had entered into a Cohabitation Agreement, which would have made specific provisions as to what should happen to the property in the event that one of them predeceased the other.

In another example, Gerry and Jane own the property jointly, but the deposit was £80,000 and funded by money which Jane had made from selling her previous property. They agreed informally that if they ever separated and the house was sold, Jane would receive back her £80,000 deposit, and thereafter the sale proceeds would be divided equally between them. A few years down the line, Gerry meets someone else, and decides to leave Jane and wants to sell the house. Jane, devastated, agrees. However, when it comes to it, Gerry refuses to agree to Jane receiving back the full £80,000 deposit, as he wants extra money to go towards him buying a new property for him and his new partner to live in. Again, Jane’s only option in the absence of being able to agree things with Gerry is to litigate. The Court doesn’t accept that Jane should get back all of her £80,000 before the rest of the proceeds are split; and after taking legal fees into account, she receives a lot less than she would have had they formalised that initial agreement in a Cohabitation Agreement.

The Cohabitation Agreement provides cost effective certainty as to what will happen in the unlikely event of a separation or death in intestacy. In the event that there is no Cohabitation Agreement in place, and a disagreement arises, litigation is the most likely alternative. If you would like to hear more in relation the law, how it might affect you, and what we can do for you, do not hesitate to contact a member of our Family Law Team.

The information and opinions contained in this blog are for information only. They are not intended to constitute advice and should not be relied upon or considered as a replacement for advice. Before acting on any of the information contained in this blog, please seek specific advice from Gilson Gray.