Definition of Cohabitant
A cohabitant is defined as a man and a woman who are (or were)
living together as if they were man and wife or two persons of the
same sex who are (or were) living together as if they were civil
partners. The legislation then provides further guidance and
directs that the court should have regard to the length of the
cohabitation, the nature of the cohabitant's relationship and the
nature and extent of any financial arrangements which existed.
Whilst the definition leaves it open for a person to be cohabiting
with more than one individual it is likely that the legislation
will be interpreted restrictively and that one person can only have
one cohabitant in the same way as one person can only have one
spouse. It is unclear at this stage whether or not a spouse who is
perhaps separated from their husband/wife can also have a
cohabitant. It seems likely that they can.
Entitlement
Regrettably this well-meaning legislation has not produced a
clear structure of guidance as to what cohabitants can expect
following upon separation. If a couple are married then the
legislation gives clear guidance as to the definition of
matrimonial property, how to value that matrimonial property and
indeed the scheme of division as well. The financial provisions for
cohabitants are more akin to a compensatory payment rather than an
equal division of the property that has been acquired during the
period of the relationship.
There is however a presumption that household goods acquired
during the period of the relationship are divided equally. That is
a rebuttable presumption and does not cover gifts, inheritances,
money, motor vehicles or pets. There is also a presumption that the
parties should share equally any money or property derived from a
household allowance. The legislation does however expressly exclude
the sole or main residence from any equal division.
A cohabitant can claim a capital sum from their partner if they
can show that they have suffered economic disadvantage in the
interest of that partner or their children and if that partner has
derived an economic advantage from these contributions. The court
can also have regard to the economic burden of caring, after the
end of the cohabitation for a child.
Whilst the legislation has been in place for a number of years
now there have been very few decisions from the courts and legal
advisers are therefore finding it difficult to accurately advise
clients as to exactly what they are entitled to. Regrettably that
leads to expensive litigation and uncertainty. Any claim has to be
initiated within twelve months of the separation and it is
imperative that legal advice is taken as quickly as possible to
avoid a claim being time barred as the courts have no power or
discretion to accept a late claim.
Death of a Cohabitant
A cohabitant is entitled to make a claim if their partner died
without having a Will and if they were cohabiting with the partner
at the time of their death. Any claim must be raised within six
months of their partner's death. A cohabitant can not claim more
than they would have been entitled to if they had been married. As
the court has no discretion to allow a late claim steps should be
taken as quickly as possible to avoid a claim being time
barred.
Contact
Craig Samson,
Partner - Tel: 01382 229 222
John
Mitchell, Partner - Tel: 0131 222 8000
Jennifer
Gallagher, Partner - Tel: 01382 229 222