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  • Cohabitation

Cohabitation

If you are living with your partner but not married and that relationship breaks down, you do not have the same rights as a married couple.  A claim for financial provision must be made within 1 year from the date of separation.

People in Scotland regularly use the terms "common law wife" or "common law husband". These terms, in fact, belong to a time long forgotten, where cohabitation was frowned upon, and unmarried couples held themselves out to be married, to friends, family, and, the wider community.  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 world at large believed they were married. 

Modern attitudes saw the demise of common law protection, but the position of modern cohabitees was not codified until 2006, with the advent of the Family Law (Scotland) Act that year. In terms of that Act, cohabitees now have rights in certain property, have the right to apply for certain financial provision following separation, and, have the right to apply for financial provision from the Estate in the event of the death of their cohabitee. 

However, the Act does not place couples on the same footing as married couples. Cohabitees still do not have the same rights as married couples and, even 12 years after the coming into force of the Act, recent Court decisions continue to demonstrate that cohabitees' rights fall well short of those enjoyed by married couples.

In addition, upon separation or death, cohabitees have very strict time limits within which to present their claims.  Upon separation, claims must be presented to the Court within one year. Following death, claims must be presented to the Court within 6 months.  Cohabitees 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 also, that cohabitees only have claims on death in the event that their cohabitee did not leave a Will. The existence of a Will will preclude a co-habitee's claim and the deceased's estate will be distributed in accordance with their Will, notwithstanding the terms of the 2006 Act.  Another timely reminder that we should all ensure  we have a Will!

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