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Cohabitation Confusion

People in Scotland regularly use the term “common law wife” or “common law husband”. These terms in fact belong to a time long forgotten where co-habitation was frowned upon and unmarried couples often held themselves out to be married to friends, neighbours and even family members. Long ago, the common law of Scotland protected such couples upon separation or death. However, for the common law to apply couples had to prove that the wider community, in fact, believed them to be married.

While modern attitudes saw the demise of the common law, the position of modern co-habitants was not codified until 2006 with the advent of the Family Law (Scotland) Act that year. In terms of that Act, co-habitants now have rights in certain property; have the right to apply for financial provision following separation, and; have the right to apply for a share of the Estate in the event of the death of their co-habitee. The Act does not, however, place co-habiting couples on the same footing as married couples. Co-habitants still do not have the same rights as married couples and, even now, almost 13 years after the coming into force of the Act, recent Court decisions continue to demonstrate that co-habitees’ rights still fall short of those enjoyed by their married counterparts.

In addition, upon separation or death, co-habitees have very strict time limits within which to present their claims. Upon separation, claims must be presented to the Court within one year and following death, claims must be presented to the Court within 6 months. Co-habitants must not allow the time limits to pass while negotiations continue. To do so, is fatal to their claims.

It is also important to note that co-habitants only have claims on death in the event that their co-habitee did not leave a Will. Where there is a Will, the deceased's estate will be distributed in accordance with their Will not withstanding the terms of the 2006 Act.

Another timely reminder that we should all ensure our Wills are up to date!

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