At the moment under current legislation, a surviving cohabitant can only make an application to the court where there is no will following the death of their cohabitant. Also the surviving cohabitant only has six months from the date of death to make an application to court, and the court is under no obligation to accept applications out with this time limit.
Mr Kerrigan of the Law Society’s Trusts and Succession Law Sub-Committee has criticised this time limit stating that “an individual is likely to be grieving and struggling to deal with practical matters following the death of a partner.” The report also comments on the length of time given to raise an action compared with other areas of the law, noting that personal injury claims and debt recovery actions are afforded more time , three and five years respectively.
Following recent research the Law Society revealed that 76% of solicitors found the time limits to be a “problematic” area of the law and a proposal has been made for an extension of up to one year from the date of the cohabitant’s death. Should confirmation be obtained after this one year period has passed the Law Society is suggesting up to six months from the date of confirmation-“under either circumstance, it should be open to the court to allow the late lodging of an application” Mr Kerrigan has said.
The Law Society has called for a wider review of the provisions of Sections 25-29A of the Family Law (Scotland) Act 2006 and has highlighted a number of other issues relating to the law on cohabitation.
The full report is available by following the link below.