It is common nowadays for unmarried couples to live together as if they were married or in a civil partnership. This long-term alternative living arrangement may see cohabitants sharing many assets including: co-owned property, shared cars or joint bank accounts.
Some financial protection is given by the law to cohabiting couples however, it is untrue to believe that they are afforded the same legal protection as those who are married or in a civil partnership. These differ substantially and at Kee solicitors we can offer specialist advice to cohabiting couples.
It is wise for a couple who are living together, to consider making a cohabitation agreement. This is a contract between both partners that ensures that certain arrangements are made in regards to their finances or childcare. Once a cohabitation agreement has been put in place, it will offer security should the relationship end or one cohabitee pass away.
Separation from your Cohabiting Partner
Under the Family Law (Scotland) Act 2006 some provisions are available for cohabitees, whether that be in regards to one partner passing away, or if the relationship breaks down.
If cohabitees separate from one another and cannot agree to how finances should be divided it is possible to have a separation agreement drawn up or to apply to the court. The court may order for a capital sum to be paid to one partner from the other. This may occur if one partner is at an economic disadvantage in comparison to the other partner, who has an economic gain as a result of the separation. This could be the case if for example, one partner paid a the full deposit for a jointly owned property upon purchase.
There is an assumption that upon separation the household goods acquired during the course of cohabitation are equally owned. If both cohabitants own the property, the starting point is that the title deeds will determine how much each cohabitee is entitled to if the property is sold. Usually, the title deeds will provide that a couple has equal shares. This would result in an unfair division of proceeds, if one person has contributed more than the other. Therefore, it is vital that as a cohabitee, you seek legal advice prior to buying any property or making any major financial commitment with your partner.
Cohabitation Rights Upon the Death of your Partner
Under the 2006 act, the surviving cohabitant may make a claim against the deceased estate but only if; no Will has been left, they were domiciled in Scotland immediately before their death and were cohabiting with survivor in Scotland immediately before their death.
Action must be taken quickly in these situations; the surviving cohabitant has to make an application to the sheriff court or the Court of Session within six months of the others death to preserve claim upon the estate.
If the deceased partner was still married at the time of death, the spouse will still be legally entitled to a share of the estate. It is also important to be aware whether or not there is a survivorship destination over any property.
The court has a wide discretion on the amount to award out of the estate. This can be a cash sum or transfer or an asset of the estate. In deciding the amount that is to be awarded, the court will consider the size and nature of the estate, any benefits which the survivor has derived from the cohabitant’s death and any other rights or claims which other people might have on the estate.
There are limitations on the amount awarded, the survivor cannot be awarded any more than they would have been entitled to had the survivor been the spouse or civil partner of the deceased.
Do I Need a Lawyer?
While there has been an improvement generally, in the degree of recognition cohabitants are given under Scots Law, cohabitants still possess far less legal protection than married couples. Important issues around finances and child custody should be ironed out, and given a degree of clarity. Therefore, it is advisable that you seek legal advice to guarantee a degree of certainty and avoid potential drawn out and uncertain litigation in the event of separation.
Contact Cohabitation Agreement Lawyers
At Kee solicitors, we are expert in matters of cohabitation with our specially tailored service we can offer clear and concise advice, giving you peace of mind knowing that your legal affairs are in order.
We can specifically give you advice in regards to your various concerns as a cohabitee including: property ownership, financial arrangements, child custody in the event of death or separation, wills and inheritance in the event of the death of a cohabitee.
Contact us today on: 0141 648 9214
We will ensure that you are afforded greater security in regards to the financial and personal arrangements that affect your relationship. If looking for peace of mind and certainty on this issue, do not hesitate to contact us.