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Cohabitation

There is a great deal of confusion surrounding cohabitees and their legal rights either on separation or on the death of their partner. Before 1 May 2006 the position was very clear. Bar some very exceptional circumstances one cohabitee had no right to make a claim against their partner either on separation or death. The Family Law (Scotland) Act 2006 changed all that and allowed a cohabitee to make a claim against their former partner if they separate after 4 May 2006 or against the executors of their partner if that partner died after 4 May 2006 and providing they were cohabiting at the time of death.

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
Gareth Masson, Partner -Tel: 01224 588913 

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