It has been announced by Bridget Prentice, the Justice Minister
for England and Wales that plans to give 2 million cohabiting
partners in that jurisdiction similar rights to those held by
cohabitants in Scotland have been shelved.
Cohabitation in Scotland - the background
There had been a long held but mistaken belief amongst the
Scottish public that a couple established a "common law marriage"
if they lived together for a period of time. Following a
substantial increase in the number of unmarried couples who had
chosen to cohabit, the Scottish Parliament introduced legislative
change by virtue of the Family Law (Scotland) Act 2006 ("The 2006
Act") which came into force in Scotland on 4 May 2006. Whilst the
2006 Act did not legitimise the notion of "common law marriage" it
introduced in Scotland certain rights and obligations between
cohabiting couples of opposite sex and of the same sex. A
cohabitant is defined in the legislation as either member of a
couple living together "as if they were husband and wife"
or "as if they were civil partners". The section of the
2006 Act dealing with cohabitants' rights was introduced into Scots
law with little media coverage. Whilst the 2006 Act did not give
cohabiting couples in Scotland the same rights as married couples
or civil partners, it did create important legal rights and
obligations. There is no minimum period of cohabitation prescribed
by the 2006 Act for the acquisition of rights under it. The
consequences of the legislation for cohabiting couples still appear
to be a surprise to many members of the public and also to those
within the legal profession not practising in the area of family
law.
The 2006 Act in practice in Scotland
Guidance is still awaited from the Scottish Courts regarding
interpretation of the legislation. The 2006 Act imposed very strict
time limits with regard to commencement of claims for financial
provision following cessation of cohabitation or following the
death of an intestate cohabitee. Such claims must be brought before
the courts within one year of the date on which the cohabitants
ceased to live together or within six months of the date of death
of the cohabitee. There is no provision for those time limits to be
extended by the court.
Simpson & Marwick has advised numerous cohabitants and
prospective cohabitants with regard to their rights and obligations
subsequent to the introduction of the 2006 Act in Scotland. In
particular Simpson & Marwick has advised prospective
cohabitants of the measures available to them to protect personal
assets from any claim that may subsequently arise from their
cohabitation and the subsequent breakdown in that relationship.
Recent announcement
The Justice Minister has announced that no steps are to be taken
to introduce the changes in England and Wales recommended by the
Law Commission after two years of work. Ms Prentice has said that
the Scottish Government intends to research the costs arising from
the reforms in Scotland.
"The Government proposes to await the outcome of this
research and extrapolate from it the likely cost to this
jurisdiction of bringing into effect the scheme proposed by the Law
Commission and the likely benefits it will bring" she said in
a written statement to Parliament. "For the time being,
therefore the Government will take no further action" she
added.
Response
In England the move has been criticised by Resolution, a group
of leading family lawyers who have predicted continued distress and
hardship for cohabiting couples at the termination of their
relationship. The Government was described as being "seriously
out of step with public opinion on the issue by failing to act
now".
Commentary
With the results of the Scottish Government research not likely
to be available until at least 2010, it appears that the rights and
obligations of cohabitees North and South of the border will
continue to be very different. Given the relative uncertainty of
the law in this area it is essential that specialist legal advice
be obtained by those who are considering cohabitation or indeed by
those who are already cohabiting should a breakdown in their
relationship be anticipated. The obtaining of this specialist
advice is particularly useful prior to the commencement of the
relationship and before the prospective cohabitants enter into more
commonly recognised binding legal relationships together, such as
the joint purchase of property.
For further information please contact Shaun George (email shaun.george@simpmar.com)
or Richard Smith (email richard.smith@simpmar.com).