The Family Law (Scotland) Act 2006 introduced a legal framework for cohabiting couples who are not married and have not entered into a Civil Partnership but who nevertheless live together as if they are a married couple. The 2006 Act stipulates what should happen when a relationship breaks down or when one of the parties dies.
Section 25(1) of The Family Law (Scotland) Act 2006 sets out that a “cohabitant” is:
“A person who is, or was, living with another person as if they were husband and wife, or two persons of the same sex who are or were living together as if they were civil partners.”
That provides a clear definition and the following section of the Act 25(2) goes on to expand by stating:
In “determining for the purposes of sections 26-29” (the remaining sections on cohabitation) whether a person is a cohabitant of someone else, the court shall have regard to (a) the length of the period during which they lived together, (b) the nature of the relationship during that period and (c) the nature and extent of any financial arrangements subsisting or which subsisted during that period.
We can tailor our advice to your individual circumstances and advise you about the possibility of drawing up a cohabitation agreement between you and your partner, setting out how your finances and property are to be treated, particularly in the event of any separation.
With the number of families cohabiting at an all time high, this legislation was brought in to provide some legal protection to couples who chose to cohabit. The trend is set to continue with the Office of National Statistics reporting that the number of cohabiting families increased by 25% from 2008 to 2018.
There are various circumstances where it might be worthwhile having a cohabitation agreement in place including:-
Cohabitants can gain rights to a financial sum arising out of the cohabitation. To enable you to protect the assets you have going into the relationship it’s prudent to enter into a formal agreement. This will set out what will happen if you decide to live apart or one of you passes away, and where appropriate. assets can be ring-fenced.
Many individuals shy away from discussing what might happen if they separate. We appreciate drawing up a cohabitation agreement with your partner is not the most romantic subject but it is important to consider this so your assets are protected.
The 2006 Act does make some provision for finances and property of cohabiting couples. For example, it provides that household goods purchased during the period of cohabitation are treated as if they are owned jointly and should be shared on that basis. There is also a provision that housekeeping money is treated as belonging to the couple in equal shares (this does not include the house owned by the couple). The 2006 Act makes provision too for when couples cease to cohabit. There is no equivalent to the fair sharing of matrimonial property provided for in relation to married couples or those in Civil Partnerships. However, a cohabitant can apply to the court, within a year after the date on which they ceased to cohabit, for payment of a capital sum or for an order that a party should pay an amount in respect of any economic burden of caring, after the separation, for a child of the relationship. The Court would look at a variety of factors in deciding what orders to make, for example how long the parties have been together, the type of relationship and any financial arrangements they have.
The Act also allows a cohabitant to claim in the estate of their partner on the partner’s death where he or she did not leave a Will. This was not previously possible. Such application must be made 6 months from the date of death.
Should you wish any further information in respect of cohabitation, please make an appointment with one of our Solicitors who can advise you accordingly.
When you move in with your partner and aren’t married, it is prudent to prepare for the possibility of things going wrong. This can be done through a Cohabitation Agreement which can protect against any problems which may arise if you and your partner decide to split up. The Cohabitation Agreement provides a record of what you have both agreed about how you own and share things. It encourages you to consider your finances, and set out a fair agreement on how money, property and liabilities should be divided if the relationship comes to an end. This ensures that neither party loses out financially and offers a level of security and piece of mind.
If you have a query or wish for some advice please make an enquiry or contact one of our offices directly and a member of our team will be happy to assist.