Due to Covid-19, as a nation, we have been strongly advised to socially distance from our friends and family out with our own households. However, for some couples, an unintended consequence following the imposition of "lockdown", is that they have accelerated the decision to live together, more as a practical measure to avoid the restrictions of lockdown and any adverse impact upon their relationship, than a considered commitment to each other to set up home together as the next step in their relationship. But how many of these couples will have considered the law on cohabitation and the implications this may have upon them in the future when taking this step?

The present law on cohabitation has been in place since 2006 and is contained in Sections 25 to 29 of the Family Law (Scotland) Act 2006. However, many people are still surprised to learn that the Act does not afford parties who opt to live together the same legal rights and responsibilities as those who are married, or who have entered into a civil partnership, despite the fact such couples are committed to an enduring family life and they may also raise children together. Taking account of the number of longstanding adult relationships outside marriage, which remains in the ascendancy, it is questionable that those individuals who have opted not to get married or enter into a civil partnership should find themselves at a disadvantage as a result of their legal status.

An example of the material differences in the legislation governing those who are married/in a civil partnership and those who are cohabiting, can be acutely highlighted in the event of the death of one party. All too often an individual who has been cohabiting with their partner (for years in some cases), wrongly assumes they will be treated as if they were married which is not the case at all.

As highlighted above, one of the impacts of Covid-19 is that certain couples may have made the decision to live together much sooner than would have otherwise been the case. However, in some cases, what started out as a short-term living arrangement simply to get through lockdown, may turn out to be a more permanent arrangement for those couples whose relationships have stood the test of the many challenges lockdown poses. Spending many more hours together than would normally be the case, with nowhere to go to escape, is undoubtedly a test of whether a relationship is going to survive in the long term!

In a situation where the decision to cohabit has been brought about by an unexpected and entirely unprecedented pandemic, there is likely to have been less planning and much more "spur of the moment" mentality involved. Therefore, it is likely neither party has given any thought to the longstanding financial implications of continuing to live together post lockdown or what financial provision may be required should their relationship come to an end. For example, if one party is the owner of the property where the couple are cohabiting and the other party agrees to make a financial contribution towards its upkeep (to cover mortgage payments for example), should the relationship come to an end, in the absence of agreement, it may be difficulty for the party making the contribution to recover any of this at a later date.

The law in such situations is not particularly clear and if you end up having to go to court to resolve matters, the process is expensive (potentially costing more than the amount in dispute) not to mention the fact that being involved in a court action is very stressful.

These situations can be prevented or managed by entering into a legal agreement known as a cohabitation agreement. Ideally this should be done before the commencement of cohabitation, but it is not too late to do so afterwards. Such an agreement can regulate what is to happen in the event the relationship breaks down, with a clear formula to calculate how much each party will receive and also what should happen on the death of one party. It is more sensible to retain control over what is to happen upon a certain event happening in the future, rather relying upon the current legislation which can often lead to an unsatisfactory outcome. Moreover, the cost of entering into a cohabitation agreement is far more modest than the cost of being involved in lengthy court proceedings.

The Scottish Law Commission is currently consulting about whether the law on cohabitation should be reformed and if so, to what extent. Key considerations are that the current legislation is not clear enough in its objective, it does not provide effective remedies for parties upon the breakdown of a relationship and it is no longer appropriate in 21st century family life. However, the SLC is not reviewing Section 29 of the 2006 Act which relates to an application of a surviving co-habitant for financial provision on intestacy which is to be considered as part of review on the law of succession.

One of the possibilities being considered by the SLC is that the law on cohabitation could be changed to reflect that the distinction between marriage and cohabitation has lessened and therefore cohabitation should automatically attract marriage equivalent rights and responsibilities. For some, such a possibility may be viewed as an infringement upon their private lives as individuals when they have deliberately selected not to get married. If such a reform is carried out, entering in to a cohabitation agreement could allow parties to contract out of any legislative changes and preserve their freedom of choice.

To discuss any of the information above or the possibility of entering in to a cohabitation agreement please contact Fiona Sharp, a Senior Associate in the Family Law Team of Brodies. Even with the current restrictions imposed by social distancing, we remain available to support and help clients and communication can be facilitated by telephone, email, Skype and Zoom.