February 2019 – The Scottish Government Ponders Cohabitant Quandaries

Author: Mitchells Roberton
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This month the Scottish Government issued a(nother) consultation on the law of succession. Among other things it includes a section which suggests reforms to cohabitants’ succession rights. To give some context to that particular aspect of the matter it is worth giving an overview of cohabitants’ rights generally before touching on some of the Scottish Government suggestions in the consultation. References below to marriage (however expressed) include civil partnerships.

OVERVIEW OF COHABITANTS’ RIGHTS

  • Compared with the situation for married couples cohabitants don’t get many rights and the ones they do are not as clear-cut as for married people. They may be summarised like this:

Right for “non-entitled” co-habitant to ask court for “occupancy rights”

  • In principle, if one cohabitant owns the house in which the couple live the one who owns no share of it has no automatic legal right to occupy it. But they may apply to the court for such rights to be granted.

Rights in certain household goods

  • If there is a question as to who owns any household goods there is a presumption – which could however be overturned if there were suitable proof – that any household goods which have been acquired during the period of cohabitation are owned equally. This doesn’t cover household goods acquired by gift or succession from a third party.

Rights in certain money and property

  • There is an equal sharing of money or property acquired from savings from a housekeeping allowance that one party made to the other. This is however unlikely to be of much relevance these days when, even if there is only one party in work, his or her salary will likely go into a joint account to which both parties have access rather than the “breadwinner” giving a “housekeeping allowance” to the other party.

Financial provision where cohabitation ends otherwise than by death

  • When the relationship ends an ex-cohabitant may apply to the court for a financial settlement with the other. In general, they must do so within a year of the relationship coming to an end (other than by death).
  • The financial provision that may be awarded is wholly discretionary, but the court must have regard to certain factors e.g. whether the defender cohabitant has derived economic advantage from contributions made by the applicant cohabitant, and whether the applicant cohabitant has suffered economic disadvantage in the interests of the defender cohabitant or any “relevant child”.
  • Contributions cover indirect and non-financial contributions, including looking after a relevant child.
  • The only orders that can be made are for a capital sum or payment in respect of the economic burden of caring for a child of the parties.

Provision for a survivor on the death of a cohabitant 

  • A surviving cohabitant does not have any of the automatic succession rights which a surviving spouse would have.
  • A surviving cohabitant may however apply to the court for a financial award but only if the deceased cohabitant died “intestate” i.e. without leaving a will. (They could also do so where the deceased died with a will but, unusually, it did not deal with their whole estate and so some of it falls into “intestacy”.)
  • An application to the court by the surviving cohabitant is competent only if, in particular (a) the surviving cohabitant and the deceased were cohabiting immediately before the latter’s death; and (b) the application is made within six months of the death.
  • In deciding what award, if any, to make the court must have regard to: (a) the size and nature of the intestate estate; (b) any benefit received by the applicant as a result of the deceased’s death; (c) other claims on, and liabilities of, the estate; and (d) any other appropriate matters.

SCOTTISH GOVERNMENT CONSULTATION SUGGESTIONS

  • The Scottish Government consultation is just that: a consultation which makes a variety of proposals and asks for views. In particular:
  • It asks for views on whether a cohabitant should have an automatic entitlement to inherit on intestacy (i.e. where there is no will – or it doesn’t deal with the deceased’s whole estate) without having to make a court application.
  • And it also asks for views on whether, if a court decides that a cohabitant was in a “financially interdependent relationship” with the now deceased cohabitant, the survivor should have the same rights as a surviving spouse would have.
  • This perhaps gives a flavour of the fairly radical thinking contained in the consultation. We shall see what happens. 

Note: This material is for information purposes only and does not constitute any form of advice or recommendation by us. You should not rely upon it in making any decisions or taking or refraining from taking any action. If you would like us to advise you on any of the matters covered in this material, please contact Fiona Wayman: email Fiona@mitchells-roberton.co.uk

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