In recent decades how we live in Scotland has changed. Many couples now choose to live together without being married or entering a civil partnership. It is believed now there are more than a quarter of a million such couples in Scotland.
So far so good, but what is often not understood by people in such relationships is that the act of cohabitation creates rights to claim property from their cohabitant in two situations. The first is after separation, and the second is on the death of one of the cohabitants when the cohabitant who died did not make a will.
Courts may entertain claims by one party against the other or against the estate of the other and the court has a discretionary right to make an award. How much of an award is made depends on the length of the cohabitation, the nature of the relationship, and the nature of any financial arrangements in place during the cohabitation.
Alison MacPhee, litigation partner with Caesar and Howie comments “living together with no formal legal link between the parties is really common nowadays, and it is a pity many folk just don’t realise that living together creates obligations. Whilst we find younger folk have a bit of an idea that obligations arise from cohabitation, older people don’t seem to automatically think that. And nowadays many older people, often after loss of a partner, may enter cohabitation arrangements with someone new. People are also confused as to what cohabitation rights are and what is not included”.
The Law Society of Scotland in a recent report suggests the law needs some amendment – since there are strict time limits for lodging claims. This can effectively rule out what may have been reasonable claims which were not proceeded with because the claimant did not understand their rights.
Alison is in favour of these proposed changes. “I think this will help a bit and I hope we do get a change in the law. However, I think the biggest issue is to get the message out there that cohabitation creates rights and obligations and what these are. People really should be aware of this and take advice. If they don’t want cohabitation to create obligations after their death, then a will is necessary. If they don’t want cohabitation to create obligations after separation then a formal agreement with the cohabitant needs to be entered into. The main thing is people should understand their legal situation and ensure things don’t happen “by accident” because they have not thought about the future or are confused about what their rights are.