This year will mark the 10th anniversary of legislation coming into force in Scotland which has changed the legal framework for separating couples who are not married.
According to the Office for National Statistics in 2014 there were 18.6 million families in the UK. Of these, 12.5 million were married couple families. This is the most common family type in the UK. However, cohabiting couple families grew by 29.7% between 2004 and 2014. This is the fastest growing type of family in the UK. It is clear that the composition of families is changing and the law in Scotland has adapted in order to reflect that.
Ten years ago the Family Law (Scotland) Act 2006 introduced rights and obligations relating to cohabiting couples. The 2006 Act has introduced a set of basic rights to protect cohabitants, either when their relationship breaks down, or when a partner dies. However, what is most important to realise is that couples living together do not have the same rights as married couples and civil partners. There is also no such thing as a ‘common law’ husband or wife. It is very important that you understand this when deciding whether to move in with your partner or to make a formal commitment.
Who is a ‘cohabitant’?
A ‘cohabitant’ is defined as a person who is, or was, living with another person 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.
What are the rights on separation?
After separating from such a partnera person can apply to the court for an order for payment of a capital sum for their own benefit and/or a further sum to reflect the additional financial burden of having to care for a child who is either a child of both of the parties or a child who has been accepted as a child of the family. In deciding whether or not to make an order, the court has to take account of the extent to which the former partner has derived an economic advantage from the contributions of the person making the application and also whether the person making the application to the court has suffered an economic disadvantage in the interests of their former partner and/or any child of the family. The court then must balance any economic advantage or disadvantage gained or suffered by either party. “Economic advantage and disadvantage” includes gains/losses in capital, income and earning capacity. It is of most important to note that such an application must be made to the court within one year of the couple separating. This is a very strict timescale and emphasises the importance of seeking legal advice as soon as possible after separating if you think you may have a claim against your former partner.
What are the rights on death?
If your partner dies, while you are still a cohabitant and if your deceased partner has made a will, the law remains unchanged and the terms of his or her will shall prevail. However, if the situation is one of intestacy, i.e. where your partner dies without having made any will, then you may apply to the court for financial provision out of your deceased partner’s estate.
The court will consider (a) the size and nature of the estate, (b) any benefit received or to be received by the surviving partner, (c) any other claims on the estate, such as those of the deceased’s children, and (d) any other matters which the court considers to be appropriate. Significantly, the court cannot make an order awarding the surviving partner a higher amount than they would have had right to had the parties been married or civil partners.
Any order made by the court for payment to a surviving partner of a capital sum/transfer of property must be made from the deceased partner’s net estate after payment of inheritance tax, debts and satisfaction of any prior or legal rights claims of a surviving spouse/civil partner. Therefore, if someone is married but separated and living with their new partner, even for a number of years, the wife’s rights on succession are not overridden and the surviving cohabitant could be left with nothing. Essentially, the legislation is designed to give some rights to cohabitants but not the same rights as married couples. Again, it is important to note that the timescales are even tighter for these types of application as they must be brought to court within six months of your partner’s death.
Despite the fact that this piece of legislation has been in force for 10 years, and despite the increasing number of couples choosing not to marry, it is still our experience that most people have no or little knowledge of the fact they have any legal rights on separation or death. It is therefore never too late to raise awareness of this increasingly relevant piece of legislation.