Cohabitation

Cohabiting couples are those who are unmarried, but living together in a long term relationship that is similar to that of a marriage. Whilst the laws on cohabitation have changed over the past few years to allow unmarried couples more rights than they were previously afforded, the rights of cohabiting couples still fall far short of those who are married.

We can provide clients with extensive information on your rights prior to entering into a cohabiting relationship in order to avoid the legal and financial complications which may arise should the relationship break down. If you already in a cohabiting relationship, it is not too late to obtain legal advice.

Cohabitation agreements
Since 2006, couples who live together without marrying have certain rights in Scotland. The ability to make a financial claim now applies in the event of either separation or death. Given the complexities that can arise with regard to cohabitants, it is important that there are appropriate safeguards in place to protect any assets that you have, or to make provision for any financial relief which is to take effect upon any separation or death. If you are already cohabiting or are thinking of buying a home with someone or moving in together, a cohabitation agreement can set out what you want to do about those rights.

A cohabitation agreement can regulate the position in relation to:

• Any financial issues
  
• Issues regarding any children of the relationship/prior relationships
  
• Provision upon the breakdown of the relationship
  
• Provision upon the death of a cohabitant

Rights upon separation
As a result of the Family Law (Scotland) Act 2006, cohabitants now have the right to apply to the court for financial provision on the breakdown of the cohabitation. In certain circumstances, a court can make an order for the payment of a capital sum, or for a cohabitant to pay money in respect of any economic burden of caring for a child of the relationship. This is a complex area of law and we can advise you of the various considerations which will be taken into account. In cases where a cohabitation has ended due to separation, strict time limits apply and you should not delay in seeking appropriate advice from a member of our Family team.

Rights upon death
The Family Law (Scotland) Act 2006 also changed the rights of cohabitants to make a financial claim against the estate of their partner if their partner dies without making a Will. If the cohabitant died with a Will in place then it will not be possible to make a claim. If appropriate, an award can comprise payment of a sum of money, or transfer of property. This is another complex area of law and certain factors require to be taken into account. If a claim is being made after the death of a cohabitant, strict time limits apply and you should obtain urgent advice from our family team to ensure your rights do not expire.