This month the Westminster Government announced that it would
not be implementing any legislative reform in England to give
rights to cohabiting couples when they separate, despite a report
by the Law Commission setting out various recommendations for
reform. The Law Society in England has responded to the news by
advising unmarried cohabiting couples to enter into cohabitation
agreements prepared by their solicitors, to offer some protection
in the event of separation.
Couples who live together in Scotland have had some legal
recognition since 2006, when the Family Law (Scotland) 2006 came
into force. Under the legislation, cohabitants who are separating
can, in certain circumstances, apply to the court for financial
orders. The legislation applies to same-sex and opposite-sex
cohabiting couples alike, and any such claim must be made within
one year of separation.
The Family Law (Scotland) Act 2006 also introduced rights for
cohabitants whose partner dies without leaving a Will, enabling the
surviving partner to apply to the court for payment of a capital
sum and/or transfer of property from their partner's estate. This
type of claim must be made within six months of the cohabiting
partner's death.
Although cohabiting couples certainly have legal recognition in
Scotland, the courts have a wide discretion when deciding whether
to make a financial award. (Please see Donna McKay's blog Appeal
Court Decision Clarifies Cohabitees Rights for further
information.)
In order to offer more financial protection and certainty in the
event of separation or death, we recommend that partners who are
planning to live together enter into a cohabitation agreement and
make Wills.
A cohabitation agreement is a legally binding contract, and can
include arrangements regarding property, mortgage payments, and the
division of assets in the event of separation. Cohabitation
agreements are particularly advisable for couples who are
purchasing a property together but are contributing unequal amounts
towards the purchase price or paying the mortgage in unequal
shares.
If you require advice on putting a cohabitation agreement in
place, please contact our specialist Family Law team. If you wish to make a
Will, please contact our specialist Private Client team.