Unbeknown to many, as of 4^th May 2006, marriage by cohabitation with habit and repute (otherwise referred to as “common law marriage”) was all but abolished. And while it is true that the Family Law (Scotland) Act 2006 rescinding this form of marriage also brought with it some protections for cohabiting couples in certain situations, cohabiting couples are by no means given the same rights as married couples. For this reason it is imperative that when two people decide to move in together, they consider carefully whether they need to set down in writing what is to happen in the event that they either split up (a cohabitation agreement) or one of them dies while they are still a couple (a will). This is particularly important where the couple go on to have children.

Unlike married couples where property acquired during the marriage, regardless of whose name it is in, is considered to be matrimonial property, cohabiting couples do not by law have such a common pot. There are equal rights in certain household goods, money and property which has been used for the purposes of running the household, but otherwise property is not deemed to be shared. However, if one party has been left disadvantaged economically as a result of a couple splitting up, there is a possibility that they will have a claim against their former cohabitant.

The last seven years have seen significant development in how the courts deal with such cases and although there now seems to be some clarity as to how they approach these claims, it is still early days. It can be difficult to predict whether a claim will be successful as each case must be considered on its own merits. A claim must be raised in the court within one year of the couple’s separation otherwise it will not be entertained by the courts at all. This also applies to any counter claim made by the other party. Note a claim will be for a capital sum only and does not include any claim for maintenance which married couples can claim from each other. While it may seem somewhat unromantic, it is worthwhile a couple thinking about entering into a cohabitation agreement when moving in together to avoid any arguments if they separate at a later date. Such an agreement would narrate what each party is bringing into the relationship and what they intend to happen to any property acquired during the relationship regardless of whose name it is taken in.

Another situation where a cohabitant might find themselves left out in the cold financially is where their partner dies without making some provision for them in a will. Section 29 of the 2006 Act allows a cohabitant who was still living with the deceased party up until their death to apply to the court for an order for payment or a transfer of property, provided they apply to the court within six months of the deceased’s death. This however only applies where there is no will. If, on the other hand, the deceased has made a will and simply left their surviving partner out of it, no claim can be made.

I am a family law solicitor and would be delighted to help prepare any cohabitation agreement. It could save a lot of heartache and expense in the event of a split. To find out more please contact me, at fhw@mitchells-roberton.co.uk