Marriage by cohabitation with habit and repute (otherwise referred to as “common law marriage”) was abolished ten years ago. And whilst it is true that the Family Law (Scotland) Act 2006 ushered in some protection, it by no means provides cohabiting couples with the same rights as their married counterparts. Consequently, when two people move in together, they should consider whether they need to set down in writing what should happen in the event that they split up or one of them dies.
Unlike married couples, where assets acquired by either party during the marriage are generally considered matrimonial property, cohabiting couples do not have such a common pot. There are equal rights in certain household goods, money and property used for the running of the household, but otherwise property is not deemed to be shared. If one party has on balance suffered an economic disadvantage as a result of the relationship, there is a possibility that they will have a claim against their former cohabitant but it can still be difficult to predict whether a claim will be successful as each case must be considered by the courts on its merits. A claim must be raised within one year of the couple’s separation and unlike married couples is for a capital sum only and does not include maintenance. So while it may seem unromantic, it is worth a couple considering entering into a cohabitation agreement when moving in together, to avoid any arguments at a later date.
Likewise, cohabitants should consider how they wish their property to be dealt with in the event of their deaths. If there is no will, a cohabitant still living with the deceased up until their death, can apply to the court for an order for payment or a transfer of property, provided their application is submitted within six months of the deceased’s death. If the deceased has made a will and simply left their surviving partner out of it, no claim can be made. Making a will and keeping it up to date could therefore save unnecessary heartache and potential family disputes when one of the parties dies.