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Cohabitation Law and Cohabitation Agreements

Cohabitation law in Scotland

Before 2006, cohabitants (those living together as husband and wife or as civil partners) had no right to financial compensation when their relationship ended.  However, the Family Law (Scotland) Act 2006 introduced new legislation which means that potential claims can be made if you are in a cohabiting relationship which ends by separation or death.

What kind of claims can be made?

Separation from a cohabitant

Provided an application is made within one year from the date of separation, a cohabitant can apply to court to order their ex partner to make a payment to them.  Broadly speaking it would have to be demonstrated that the end of the relationship has left the cohabitant who is applying to court financially disadvantaged.  The court has discretion as to whether any amount should be paid.  As the law is still relatively new, the case law is varied and there is no clear formula as to how the law will be applied.   

A cohabitant’s death

If a cohabitant’s partner dies, the surviving cohabitant can also now claim on their deceased partner’s estate within 6 months of their death, but only where there is no Will in place (i.e. they died intestate.)

Please note that time scales cannot be extended, so seeking legal advice quickly is essential.

“Opting out” of the legislation – Cohabitation Agreements

Scots law has enhanced the rights available to cohabitants however the law is unsettled and unpredictable. Having to deal with these matters by applying to court could be costly and stressful. To avoid these uncertainties.  

A Cohabitation Agreement is an agreement between cohabitants about how they wish to manage their affairs. It is possible to “opt out” of the new laws.  Provision can be made about unequal deposits invested in a property.  For example, if one cohabitant was contributing significantly more than the other person to the property by way of a higher deposit, a Cohabitation Agreement could protect that investment in the event of a separation. A Cohabitation Agreement can make provision for how the mortgage will be paid and other outgoings associated with the property. Ultimately, a Cohabitation Agreement will give both parties peace of mind and certainty about their future together. we would recommend that cohabitating couples consider entering into a Cohabitation Agreement. We would also recommend that cohabitants make an up to date Will and Power of Attorney.

If you would like more information about cohabitation law or entering into a Cohabitation Agreement, please contact Jennifer Broatch or Cameron Shaw in our family law team. Alternatively, please call 0131 226 4081 for Edinburgh, 01334 475 001 for Fife.

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