When Tarzan took Jane swinging through the vines back to his tree house, it seems unlikely that minimising his individual environmental impact was foremost in his mind. However, you don't have to view too many Attenborough documentaries to realise that the planet is in trouble. Cohabiting and the resultant sharing of resources may well provide part of the solution to safeguarding the environment, despite the risk that so doing may ruin what might otherwise have been a perfectly fruitful non-cohabiting relationship (picking up Tarzan's dirty laundry and putting up with his snoring hardly pave the road to romance).
Bruised hearts aside, what are the risks to moving in with your partner?
Under Scots Law, couples like Tarzan and Jane have certain rights if they live together. This applies equally to same sex and opposite sex couples. As the law stands, there is no minimum period of cohabitation required before claims can be made in Scotland, although the length of the cohabitation is one factor which the court will take into account in assessing whether parties are, in fact, "cohabiting".
Cohabitants have the following rights:
- Rights in certain money and property;
- The right to apply for occupancy rights in a property in which the parties were living together (which may be necessary for the party whose name does not appear on the title or tenancy agreement);
- The right to certain protective orders;
- There is a presumption that household goods are equally shared; and
- The right to make financial claims.
Financial claims on separation
On separation, a party to a cohabitation can make a claim for payment of a capital sum, or for an order requiring the defender to pay an amount in respect of the economic burden of caring, post separation, for a child of whom the cohabitants are parents.
Awards on separation are hugely discretionary and are essentially designed to redress any imbalance arising from the parties' cohabitation. The legislation is not designed to place cohabitants in the position that they would be in were they married, but significant awards have been made by the courts.
A cohabitant has one year from the date of separation to get a court action up and running if they wish to make a claim. As the law stands, other than in the instance of cross border mediation, the court has absolutely no discretion to extend the time limits, so it is important that legal advice is obtained swiftly.
Financial claims on death
On the death of one party to a cohabitation, the survivor can make a claim for an order for payment of a capital sum from the deceased's estate, or an order for transfer of property.
As with claims on separation, awards on death are discretionary, but the time limits are shorter: the survivor has just six months to make a claim.
Will changing the location of my treehouse help me?
Not only does worldwide travel have a negative impact on the environment, but it will not necessarily assist in escaping the Scots Law of cohabitation. It is not necessary for the cohabitation to have taken place in Scotland for a claim to be brought in a Scottish court. The Scottish courts have jurisdiction to deal with a claim on separation where either party is domiciled in Scotland, or has been habitually resident in Scotland for one year prior to making the claim. A claim on the death of one party can be made where the deceased died without leaving a Will, they were Scottish domiciled at the date of death and the cohabitation was ongoing at the time of the death. "Domicile" and "residence" are distinct legal concepts, so again, it is important to obtain legal advice.
Want to save the planet without risking financial ruin?
If Tarzan and Jane are financially astute, they may wish to sign a contract in advance (or indeed, during) their cohabitation to agree what will happen to their assets in the event of their separation. Agreements like this are becoming increasingly common and are designed to operate as an insurance policy, allowing love (and the planet) to flourish without too much risk to one's bank account.
This is the second instalment of our Green Family Law series. You can read our first instalment, A 'green' divorce - does it exist? here.
Contributor
Partner
