It is becoming increasingly common for couples in Scotland to choose to live together rather than to marry. This article by our Senior Solicitor Olivia Robertson considers what rights cohabiting couples have, and what they can do to best protect themselves if the relationship breaks down.
Cohabitants
Before we get onto cohabitation agreements, we should start by explaining what a cohabitant is.
The Family Law (Scotland) Act 2006 defines a cohabitant as “either member of a couple consisting of (a) a man and a woman who are (or were) living together as if they were husband and wife; or (b) two persons of the same sex who are (or were) living together as if they were civil partners”. There are lots of factors to take into account but, in short, cohabitants are couples who are in a committed, intimate relationship and live under the same roof.
The law recognises this set up to an extent, but if a cohabiting couple were to separate, they would not have the same legal rights as if they were married.
Cohabitation Claims
The law presumes that each cohabitant has a right to an equal share in household goods acquired during the period of cohabitation. For example, furniture, ornaments and household decorations should normally be split equally if a cohabiting couple were to separate. Money, securities, vehicles and pets are specifically excluded from that presumption.
The law makes the same presumption in relation to money derived from any allowance made by either cohabitant for their joint household expenses (or for similar domestic purposes), or any property purchased with that money.
If a cohabiting couple separates, they do not have any automatic rights. However, the 2006 Act allows a cohabitant to make a claim for financial provision against the other.
In deciding whether to grant the application, the court will consider if the applicant cohabitant has made contributions which have economically disadvantaged them, while economically advantaging the other cohabitant or a child of the relationship. That could be, for example, one cohabitant paying a significantly larger portion of the deposit to purchase the family home.
The court will then carry out an off-setting exercise to consider whether any economic advantage is balanced out by any economic disadvantage and vice versa. For example, one cohabitant may have funded the general household expenses and been economically disadvantaged, but the other cohabitant may have given up work to care for a child of the relationship and has therefore also been economically disadvantaged.
There is no set criteria and every case will be determined on its own unique circumstances.
Cohabiting couples should note that there is a strict one-year time limit to raise such a claim. It is very important to take legal advice at the earliest opportunity following separation.
Left to the courts, a cohabitant cannot be certain what they will be entitled to, if anything at all. Pursuing a cohabitation claim through the courts is also likely to be expensive, time consuming, and probably quite stressful.
So, what else can you do?
Cohabitation Agreements
Couples can enter into cohabitation agreements.
Done properly, a cohabitation agreement is a legally binding contract between the couple that sets out what should happen if they separate. You can think of it like a “pre-nup” but for couples who are not getting married.
Whether you are buying a property together, taking on a joint tenancy, or one of you is moving in with the other, a cohabitation agreement can set out clear expectations both during the relationship and if it comes to an end.
You and your partner can dictate what should happen to the house and its contents, how childcare should operate, and how any other assets such as savings should be divided in the event that you separate. Taking the time to do this at the outset of your “cohabitation” could save time, money and heartache in the long run. You can also cover how household expenses, such as general running costs and repairs, should be met during the cohabitation.
If you, or a loved one, is considering a cohabitation agreement, we recommend that you take independent legal advice at the earliest opportunity. We understand that these conversations can be difficult and may even feel pessimistic. Our Family Law specialists will provide compassionate and discreet advice, tailored to meet your needs.
If you would like to discuss a cohabitation agreement, please contact our office on 0141 307 2311 and ask to speak to a member of our Family Law Team.
The Scottish Parliament’s decision to reject the Assisted Dying for Terminally Ill Adults (Scotland) Bill marked a significant moment in the long running debate over assisted dying. Following a deeply impassioned debate on Tuesday 17 March 2026, the Bill was defeated by 69 votes to 57, with one abstention.
Liam McArthur’s Bill underwent detailed committee scrutiny and faced extensive amendment in response to concerns around vulnerability, prognosis, and medical safeguards. Its rejection therefore carries particular weight. This was not an early rejection in principle. This difficult decision was reached after sustained scrutiny and the conscious judgement of individual parliamentarians not to change the law.
As a result of this historic decision, assisted dying in Scotland continues to fall within the framework of the existing law. That outcome reinforces the importance of understanding how Scots criminal law, in particular, approaches conduct connected with another person’s death.
Criminal law framework in Scotland
Unlike England and Wales, where assisting suicide is a specific statutory offence under section 2(1) of the Suicide Act 1961, Scotland has no equivalent statutory offence framed in those terms. This is sometimes mischaracterised as a gap in the law, but one might argue that it reflects a deliberate structural feature of Scots criminal law.
Scots law does not criminalise “assistance” as such. Instead, it asks whether an individual’s conduct can properly be characterised as causing the death of another person, with the requisite degree of culpability. Liability therefore arises, if at all, through the general law of homicide, namely murder or culpable homicide, rather than through a discrete offence of assisted suicide.
While suicide itself is not criminal in Scotland, third party involvement may attract criminal liability where conduct can be said to be the immediate and direct cause of another person’s death. The absence of a statutory scheme authorising assisted dying means there is no regulated or protected framework within which such assistance can lawfully be provided.
Causation and responsibility
Criminal liability in this context does not turn solely on who performs the final act. Scots criminal law focuses on causation, rather than factors such as physical proximity, presence, or the formality of the involvement. A person need not administer medication or be present at the moment of death for their conduct to raise questions of criminal responsibility. What matters is whether that conduct can properly be said to have caused, accelerated, or materially contributed to the death.
This point becomes clear when considering situations often discussed in the wider assisted‑dying debate. For example, whether a person who accompanies a loved one to Dignitas in Switzerland, a jurisdiction in which assisted dying is lawful, incurs criminal liability in Scotland will depend entirely on whether their actions can be characterised as an immediate and direct cause of the death. Simply accompanying someone, or assisting with travel arrangements, may fall short of establishing the requisite causal connection, even where the ultimate act of ending life was foreseeable. However, this assessment is always highly fact‑specific. The decisive question is not foreseeability alone, but whether the individual’s conduct can properly be said to have materially contributed to the death in law.
Questions of causation in analogous contexts have been considered by the High Court of Justiciary in cases involving the supply or administration of lethal substances. In MacAngus v HM Advocate and Kane v HM Advocate (2009 JC 203, [2009] HCJAC 8), the court emphasised that causation is a fact‑sensitive inquiry, and that a deliberate decision by an adult to ingest a substance does not necessarily break the chain of causation. Much depends on the nature and extent of the involvement.
In Ross v Lord Advocate [2016] CSIH 12, Lord Carloway observed that where an adult with full capacity freely and voluntarily consumes a drug with the intention of ending their life, voluntary ingestion will normally, though not invariably, break the causal chain. Again, the precise allocation of responsibility remains a matter of fact and circumstance in each case.
Taken together, these authorities reflect a broader principle of Scots criminal law: it is not concerned with “assistance” in the abstract, but with whether conduct meets the legal requirements of homicide. Causation remains a detailed, case‑by‑case inquiry, turning on contribution, intention, and materiality rather than on proximity, presence, or the emotional role of the individuals involved.
Prosecutorial discretion
Questions have been raised as to whether offence-specific prosecution guidance should be developed to provide greater clarity in cases involving assisted dying. Those questions may well re-emerge in the wake of this Bill.
In Ross, the petitioner sought judicial review of the Lord Advocate’s refusal to publish guidance identifying the factors that would be considered when deciding whether to prosecute conduct connected with assisted suicide in Scotland. The Inner House rejected the challenge, holding that existing Scots criminal law, together with the general prosecution policy framework, provided sufficient legal certainty for the purposes of Article 8 of the European Convention on Human Rights.
Ross was not a substantive criminal law case. It did not define the scope of criminal liability, nor did it create any protected category of assistance. Rather, it confirmed that decisions in this area continue to be governed by established principles applied through prosecutorial discretion.
Academic commentary has observed that while Ross did not clarify the substantive scope of the criminal law, it nonetheless illustrates why offence-specific guidance equivalent to that issued by the Director of Public Prosecutions in England and Wales has not been adopted in Scotland. In a system where liability arises only if conduct can properly be characterised as homicide, guidance directed at assisting suicide risks implying a legal category that Scots law does not recognise – at least not yet.
Compassion, motivation and liability
Motivation may be relevant to the exercise of prosecutorial discretion, but it does not displace the core question of causation. Compassion, however genuine, does not remove criminal liability where the legal threshold is met.
Where an individual intentionally ends another person’s life, a charge of murder or culpable homicide may arise depending on the presence of wicked intent or reckless conduct. Assertions that particular forms of assistance, such as indirect support or facilitation, will not attract criminal liability cannot be stated categorically in Scots law. The central question remains whether the conduct in issue can properly be said to have caused, accelerated, or materially contributed to death.
Vulnerability and end-of-life decisions
Questions about vulnerability and coercion were central to the recent parliamentary debate and are relevant to understanding the criminal law position.
Coercion need not be explicit. Subtle pressure, emotional dependence, or a perceived sense of burden may all shape decisions at the end of life. Scots criminal law can scrutinise these influences, and where they are present, the conduct of those involved may attract close examination. In the absence of statutory authorisation, there remains no protected legal space for third party involvement in another person’s death.
The law does, however, draw distinctions between deliberate acts causing death and clinically justified end-of-life decisions. It has been recognised, in the context of assessing homicide, that medically justified withdrawal of life support may involve no criminal responsibility.
Elsewhere in the U.K.
The Scottish position must also be understood in its wider U.K. context. In England and Wales, assisting suicide remains a specific statutory offence under section 2(1) of the Suicide Act 1961, punishable by up to fourteen years’ imprisonment. At the same time, assisted dying is the subject of active legislative debate south of the border, with the Terminally Ill Adults (End of Life) Bill having progressed through the House of Commons but now stalled at committee stage in the House of Lords.
In R (Purdy) v Director of Public Prosecutions [2009] UKHL 45, the House of Lords required the Director of Public Prosecutions to promulgate offence specific guidance identifying factors relevant to decisions about prosecution in assisted suicide cases, in order to satisfy Article 8’s requirement that interferences be in accordance with the law.
In Scotland, no equivalent guidance has been produced by the Crown Office and Procurator Fiscal Service. Decisions here continue to be governed by the general prosecution policy framework and the application of established principles of Scots criminal law.
Conclusion
The rejection of the Assisted Dying for Terminally Ill Adults (Scotland) Bill does not end the debate. It does, however, reaffirm an existing legal position. In Scotland, assisted dying remains a matter for criminal law rather than regulation. Until Parliament decides otherwise, involvement in another person’s death will continue to be assessed through established principles of causation, culpability, intention, and responsibility.
These issues are not confined to academic debate. They surface at some of the most difficult points in people’s lives, when individuals and families are already confronting loss, uncertainty, and the limits of medical care. Looking ahead, any renewed discussion of legislative reform or prosecutorial guidance will need to be approached with care, humility, and a clear understanding of the human realities at stake. As Scotland considers future options, ensuring a framework that promotes clarity, compassion, and dignity will be essential.
Solicitor
0141 307 1064
We, as the firm representing numerous patients affected by the actions of former neurosurgeon Sam Eljamel at the ongoing Public Inquiry and in their claims for compensation, today strongly welcome the decision by NHS Tayside to remove the legal time limit for his victims seeking to pursue personal injury compensation claims.
This decision abolishes the three-year statutory time bar that previously prevented many patients from taking legal action as the time limit had expired since their treatment. This move acknowledges the devastating and complex circumstances faced by victims, many of whom were initially unaware that their life-altering injuries were the result of negligent treatment.
The decision by NHS Tayside means all former patients of Mr. Eljamel now have a full three-year period, starting immediately, in which to initiate legal proceedings against the health board. This time frame is applicable regardless of the original date of their surgery.
Suzanne Williams, Legal Director said : “This is a momentous victory for our clients, earned through their prolonged and courageous campaign. This action by NHS Tayside finally guarantees that justice and accountability are accessible to everyone harmed by Mr. Eljamel’s practice or those he supervised. We urge all affected patients to immediately seek comprehensive legal advice on their individual cases.”
If you have been affected by medical negligence as a result of the actions of Sam Eljamel or NHS Tayside and wish advice, please contact our specialist team on 0141 307 2311 or email us at eljamelenquiries@lemac.co.uk
We were pleased to have two representatives of the firm serve as judges at the 10th anniversary of the Lord Jones Inter‑Varsity Moot Competition, hosted by Dundee University Law School and sponsored by Thorntons. Competitors from seven Scottish universities delivered submissions in a demanding medical negligence appeal addressing issues of informed consent, professional standards, and systems liability before an Inner House‑style bench.
Nadine Montgomery, medical negligence solicitor and pursuer in the landmark UK Supreme Court case that reshaped the law on informed consent, joined Cameron Irons, criminal defence solicitor and Past President of Dundee University Law School, in judging the preliminary rounds.
The final, presided over by Lord Weir, brought together outstanding teams from the University of Strathclyde and the hosting institution, Dundee University. After an impressive and closely argued moot, Dundee emerged as the winners, securing the Lord Jones Trophy.
As Scotland’s largest mooting competition, the event honours the legacy of Lord Michael Jones, who championed opportunities for students to develop and refine their advocacy skills.
As a specialist litigation firm, Levy & McRae are always proud to support the next generation of Scottish lawyers and to contribute to competitions that demonstrate the enduring value of skilled legal advocacy.
Significant reforms to the structure of criminal verdicts and jury decision‑making will come into force in Scotland on 1 January 2026, marking one of the most consequential procedural changes in the modern era of Scots criminal law. These reforms arise from the Victims, Witnesses, and Justice Reform (Scotland) Act 2025, and represent the first stage of its implementation.
End of the Not Proven Verdict
From 1 January 2026, Scottish juries will no longer have the option of returning a not proven verdict. Only guilty and not guilty will remain available. This change applies to:
The removal of not proven represents the culmination of years of public debate about the verdict’s fairness, clarity and effect. Many have argued that not proven often created confusion for complainers, accused persons, and the public. Supporters maintained it provided a valuable safeguard against wrongful conviction in borderline cases. The statutory abolition reflects a policy decision to simplify jury outcomes and align Scottish verdict structures more closely with those in other jurisdictions.
New Two‑Thirds Jury Majority Requirement
Alongside the verdict reform, the threshold for establishing guilt will change. There are 15 members of a jury, whereas in England there are 12. Currently, Scotland allows a simple majority of jurors to convict in solemn cases (8 out 12 jurors). From 01 January 2026, a two‑thirds majority will be required for a guilty verdict. This means that in a 15‑person jury, at least 10 jurors must support guilt before a conviction is possible.
As with the abolition of not proven, this new rule applies only to cases where the indictment has not yet been read to the jury before the implementation date.
This represents a significant shift in Scottish criminal procedure. The higher majority seeks to counterbalance the simplified verdict structure, ensuring that removing not proven does not lower the overall threshold required to convict. The impact of these reforms very much remains to be seen.
A Phased Implementation of Wider Reforms
While the verdict and majority changes are the first provisions to take effect under the 2025 Act, further reforms, some of which will have a profound impact on practice in sensitive and complex cases, will follow later. These include:
Both reforms will require new rules of court and accompanying developments in legal aid regulation, meaning their commencement is some distance away.
The Practical Implications
For criminal defence solicitors, the Crown, and the Judiciary, the 2026 reforms will require careful adjustment in case strategy, trial preparation and client advice. Key implications include:
Case Preparation and Evidential Assessment
With not proven no longer an intermediate option, trial strategies may shift. Defence teams lose a long‑standing mechanism through which juries or sheriffs could express residual doubt without fully exonerating. Prosecutors may need to assess evidential sufficiency and jury persuasion in the context of a higher conviction threshold.
Jury Dynamics and Deliberations
Requiring a two‑thirds majority increases the importance of secure, coherent and comprehensible evidential presentation. It also alters the dynamics of jury deliberation, likely making consensus‑building more demanding.
Managing Client Expectations
Both accused persons and complainers often struggle with the meaning of not proven. Although the reform simplifies messaging, practitioners must be prepared to explain the new rules, particularly in legacy cases straddling the implementation date.
Transitional Complexity
Because the applicability of the reforms depends on procedural stage, indictment reading for solemn cases, first witness for summary trials, careful attention to timelines will be essential in advising clients and planning litigation.
The abolition of the not proven verdict and the introduction of a two‑thirds majority requirement represent landmark changes in Scottish criminal justice. Effective from 1 January 2026, they signal the Scottish Government’s intention to modernise jury procedure and reshape the balance between simplicity, fairness and evidential robustness.
With further reforms on the horizon, Scotland’s criminal justice landscape will continue evolving. Criminal practitioners should familiarise themselves with the forthcoming rules and review ongoing cases to determine how the transitional provisions may apply.
If you have any questions or concerns about navigating the complexities of the criminal justice process, including the new reforms to the law, we recommend you seek specialist advice at the earliest opportunity, be you a complainer in a criminal case or someone who is facing prosecution.
Levy & McRae Solicitors are Scotland’s foremost criminal defence practice, best known for providing discreet, specialist representation to high profile and high net worth individuals, regulated professionals, police officers and corporate bodies. For over 140 years the firm have taken great pride in delivering a boutique service, litigating some of the most complex and consequential cases in Scottish legal history. Over several decades we have also developed expertise in particularly niche areas, including financial crime, corporate and regulatory investigations, firearm-related offences, health and safety law and wildlife crime.
To get in touch with our team please contact 0141 307 2311 or email us on info@lemac.co.uk
Cameron Irons
0141 307 1064
On 17th November, the UK Supreme Court (UKSC) issued its decision in the conjoined appeals of Keir and Daly v His Majesty’s Advocate ([2025] UKSC 38).
Over recent years, the defence have been faced by an ever-restrictive regime whereby evidence and lines of inquiry have been dismissed as collateral or prohibited by the “rape shield” provisions. The UKSC’s decision provides the potential to revisit how cases with sexual allegations are conducted. In particular, the Court was concerned with whether this current practice was compatible with the accused’s right to a fair trial under Article 6 of the European Convention of Human Rights (ECHR).
Though the appeals were refused due to both accused being deemed to have received fair trials, in a judgment that is of considerable importance to Scottish practice, the UKSC held that the current approach of the High Court is liable to lead to unfairness and, as a result, will require modification.
In light of the concerns expressed by the Supreme Court, it will be for the Scottish Courts to reconsider their approach to sensitive evidence in criminal trials. And trial judges will likely have an enhanced role in considering whether the relevance and admissibility of any proposed evidence.
This could also have profound implications for cases currently being prepared for trial, trials currently in progress, and for those convicted of sexual offences, who may now take steps to appeal their convictions. At Levy & McRae we work tirelessly to ensure that we are at the forefront of legal developments to ensure that we consider all angles of such cases.
We’re delighted to announce that the Law Society of Scotland has awarded our Solicitor Nadine Montgomery Allam Trauma Awareness Certification.
For Nadine, whose landmark Supreme Court case reshaped the legal definition of informed consent in the UK, this certification formalises a commitment that has always been central to her work: delivering legal care that recognises the emotional impact of medical harm.
At Levy & McRae and L&M MediLaw, we’re building a trauma-informed practice, where:
🔹 Clients are treated with dignity, not legal jargon
🔹 Staff are trained to listen as well as act
🔹 We create space for safe, client-led conversations
Learn more about our approach and Nadine’s certification: Why Trauma Awareness Matters in Medical Negligence Law
We’re heading to Chicago!
Our Senior Partner David McKie is thrilled to be attending the Legal Netlink Alliance Global Meeting this June 18–21, 2025 — and this year’s gathering promises to be something truly special.
We’ve been proud members of LNA for 25 years, and over that time we’ve had the pleasure of closely collaborating with many member firms across the globe.
David McKie said “I am looking forward to representing the firm at the conference later this month to discuss and compare common issues which face the legal profession across the globe. This event takes place 25 years since the first conference L&M attended and we look forward to celebrating our continued collaboration with our LNA partners at the home of one of the founder members.”
LNA has been more than just a network to us — it’s been a community that brings together incredible legal minds from around the world. Whether it’s through knowledge sharing, cross-border referrals, thought leadership, or friendships built through in-person meetings, the value we get from this alliance is immeasurable.
The Global Meeting is one of the highlights of our calendar — and this year, it’s happening in Chicago, hosted by Aronberg Goldgehn, one of LNA’s founding firms. We’re looking forward to thought-provoking discussions, reconnecting with colleagues, meeting new faces, and shaping the future of legal practice together.
We are delighted for Cameron Irons, our second year trainee, on his recent appointments to the Criminal Law and Public Policy Committees of the Law Society of Scotland.
Both committees are important advisory groups that represent the interests of the Scottish solicitor profession, as well as helping to shape public policy, parliamentary legislation and the overarching governance of our professional regulators.
Although Cameron is relatively new to legal practice, he brings a wealth of unique experiences to these influential roles, including his work as a Board Director of Citizens Advice Bureau and his representational role within the Royal Faculty of Procurators in Glasgow.
David McKie, Senior Partner, said “We are confident that Cameron will excel in advocating for the interests of fellow junior lawyers and use these opportunities to advance the important work of our Law Society.”
The firm is delighted to announce the appointment of Malcolm Cannon as our new COO.
Malcolm joins the firm with a wealth of experience in both industry and in the legal sector.
A former CEO of major Scottish businesses, industry representative bodies and legal businesses, Malcolm brings his vast expertise working both in the public and private sectors.
His previous legal roles have included McLay Murray & Spens, ESPC and Simpson and Marwick.
David McKie, senior partner of the firm said “We are absolutely delighted to welcome Malcolm to the firm. His experience and skills in multiple sectors will enhance the holistic and innovative approach we have always taken to the business. He will help maintain and renew our focus as we enter new territories in the law with the advancement of digital technologies and flexible working arrangements.”
Malcolm Cannon said “I am absolutely thrilled to be joining such an innovative and forward-thinking firm. I was struck by the energy and enthusiasm of the firm, which is clear from its diverse and high profile practice areas. I look forward to working with L&M’s committed and driven team to maintain and enhance their reputation as one of the leading niche practices in Scotland.”
