Since the introduction of the Family Law (Scotland) Act 2006 it has been possible for cohabitants to make financial claims against each other when their relationship breaks down.
Although the cohabiting couple continues to be the fastest growing family type in the UK, many couples remain unaware of their rights when their relationship breaks down.
This may, in part, be due to the fact that there are no equivalent rights in England.
What do we mean by cohabitation?
A cohabitant means either member of a couple consisting of a man and a woman who are (or were) "living together as if they were husband and wife" or two persons of the same sex who are (or were) "living together as if they were civil partners".
There is no minimum period of cohabitation before a cohabitant can make a claim.
How do you make a claim?
In order to make a financial claim, the cohabitant must prove that they have suffered economic disadvantage as a result of the relationship (either in the interests of their former cohabitant or their child) or that the other has been economically advantaged as a result of the cohabitation.
The court must consider the extent to which any economic advantage is offset by the economic disadvantages suffered by the cohabitant during the relationship, and vice versa.
If, for example, one party has benefitted financially from the relationship, but has required to give up their employment in order to care for a child of the relationship (or any child accepted as a child of the family), this may well offset any economic advantage.
The leading case law in this area supports a 'broadbrush' approach to the calculation of any award, which can lead to uncertainty as to the outcome of cases of this nature.
How can you protect yourself from a claim?
It is possible to put in place a cohabitation agreement in order to protect against a claim.
This can regulate financial matters in the event of a breakdown in a cohabiting relationship.
This is particularly useful where, for instance, parties purchase a property together and wish to set out what should happen to the property should they separate.
If you wish further advice in relation to this issue, or any other matter relating to divorce, separation or child law, please get in touch.
Contributor
Senior Associate
