Weddings are great. That may seem a controversial statement coming from a family lawyer, but I say this with not a hint of sarcasm. Planning a wedding or civil partnership ceremony can be one of life's most exciting undertakings.
However, the whirlwind of invitations, venues, dresses, colour schemes, bands (ceilidh, anyone?) and canapes distracts most people from taking a good look (if any look at all) at the legal implications of entering into a marriage or civil partnership. It is not a terribly romantic thought, after all, to pull out a copy of the Family Law (Scotland) Act 1985, or the Civil Partnership Act 2004, for a bit of bedtime reading when there are menu tastings to arrange. The legal intricacies of how things might pan out in the event of a future separation may therefore come as something of a surprise.
The same is true for those who choose to live together as a couple without formalising their relationship. Many people will assume that this arrangement will ensure that either a) they are safe from any financial claims; or b) that they will have rights akin to a spouse. Neither of these assumptions is correct.
Unlike many other jurisdictions, the law in Scotland provides cohabitants with the right to make claims against their other half in the event of separation, or on their cohabitant's death.
What rights do cohabitants have?
Rights for cohabitants are not automatic. However, cohabitants can apply to the court in Scotland to make a financial claim in certain circumstances. These claims are not designed to put cohabitants into the position that they might be in if they were a spouse/civil partner (and in fact, for claims on death, there is specific legislative provision which states that no award made to a cohabitant should exceed the provision which would be made to a surviving spouse). However, some very significant financial awards have been made in recent years.
There are very strict time limits in which claims can be made, so it is important that legal advice is sought at the earliest possible opportunity.
If we move abroad the Family Law (Scotland) Act 2006 won't apply… will it?
It is important to remember that in many countries, cohabitants will not have the ability to make financial claims against each other. For those seeking to relocate overseas as part of a couple, it is therefore recommended that consideration is given to the legal implications prior to such a relocation taking place.
For those who do cohabit beyond Scotland's shores, it is possible that the protection offered to cohabitants in Scotland may still be utilised in certain specific circumstances:
- A claim on separation may be made in a court in Scotland which would have jurisdiction to deal with a divorce or dissolution had the parties been married or in a civil partnership. It is not always necessary to satisfy a residence requirement to establish jurisdiction; the fact that one of the parties has Scottish domicile may be sufficient to allow a cohabitation claim to proceed here.
- For claims on death, the deceased must have been Scottish domiciled at the date of death. Although domicile and residence often align, this does not have to be the case. Again, early advice will assist in establishing whether a claim might be possible.
How can I protect myself from a cohabitation claim?
For those who now feel sufficiently daunted, please don't despair. It is possible to safeguard against an unwelcome cohabitation claim in Scotland in two main ways:
- Put a will in place. A financial claim against the estate of a cohabitant can only be made where the deceased died intestate (without a Will).
- Consider entering into a cohabitation agreement. This is a similar concept to a pre or post-nuptial agreement and can provide for what is to happen in the event of any future permanent separation.
How can I prepare for cohabitation with my partner?
For couples considering living together domestically or internationally, a cohabitation checklist may prove helpful in preparing to move-in. Our family law team can provide expert legal advice to help cohabitants. For more information, please get in touch with one of our family lawyers.
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