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.
