September 2014 – Cohabiting – Or Maybe Not?

Author: Mitchells Roberton
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Introduction

• One of the “Notes on Common Topics” (posted in January 2012) in the Knowledge Hub section of this website is headed up “Living Together and Property Rights”. This outlines what the Family Law (Scotland) Act 2006 (“the Act”) does about property rights for couples who are cohabiting (but are neither married nor in a civil partnership) where the relationship either breaks down or is brought to an end by the death of one of the parties.

• In particular, the Note outlines what counts as a “cohabitant” for the purposes of the rights conferred by the Act as follows:

“What is a “Cohabitant”?

The Act defines cohabitant so as to include both same sex and opposite sex cohabitants who are living together as if they were husband and wife or civil partners (as the case may be). In deciding whether a couple qualify as “cohabitants” – and so are entitled to the property rights the Act introduces the following factors count:

(a) the length of the period during which they have been living together (or lived together);
(b) the nature of their relationship during that period; and
(c) the nature and extent of any financial arrangements subsisting, or which subsisted, whilst living together.

It may be noted that (i) there is no minimum period of cohabitation before cohabitants may obtain their rights under the Act but (ii) the fact that a couple are in fact cohabiting does not in itself automatically mean they would be determined to be “cohabitants”. So, it might not always be absolutely clear when a couple would be entitled to the rights the Act confers. But in most cases it should be clear enough.”

• As the Note says “it might not always be absolutely clear when a couple would be entitled to the rights the Act confers. But in most cases it should be clear enough.” But there can be situations where it is not that clear.

• Another important aspect is the date when cohabitation ceases. This is because, where the relationship breaks down (other than on death), any application for financial provision must be brought within a year of the end of cohabitation. So fixing the end date may be crucial. Again, it should generally be clear enough when cohabitation ends. But it may not always be so.

• A useful recent article in the Scots Law Times (Frankie McCarthy, Defining cohabitation, S.L.T. 2014, 31, 143-145) tentatively explores how the courts approach matters in relation to both (1) cases where cohabitation is disputed, and (2) determining the date when cohabitation ended.

• This Note however touches solely on the question of where cohabitation itself is disputed.

Cohabitation disputed

• The following remarks of Sheriff Caldwell in Harley v Robertson capture a flavour of how the courts might approach matters.

“[T]his couple have been associating intermittently since 1998; on occasions their relationship took the form of a co-habitation … they had frequent separations and reconciliations and there were long periods of time also on occasion stretching into years when they had no relationship whatsoever and when indeed [Ms Harley] formed relationships with, co-habited with became engaged to another man or men. They had co-habited for a short number of months towards the end of 2008 following which [Ms Harley] had entered into another relationship with another man with whom she became engaged and co-habited prior to the resumption of her relationship with the defender in November 2009. It is noteworthy in this context that as at the date of the proof, [Ms Harley] had formed yet another relationship with another man, which had subsisted for at least some months.

Moreover, according to [Ms Harley], the reason for the numerous breaksdown of their periods of association or cohabitation, was [Mr Robertson’s] drinking habits. There was no evidence that these had altered in any way before or during the relevant period. Indeed the breakdown of this most recent period of association was also said to be [Mr Robertson’s] drinking.

[…]

I would not have found on the evidence before me that the pursuer had established cohabitation in terms of [the Act]. The act refers to persons “living together as if they were husband and wife”…[and this in particular involves] stability. It is this final characteristic of stability which was clearly absent in this relationship …”

• In particular these remarks suggest that in disputed cases the starting point for identifying whether the relationship qualifies as “cohabitation” for the purposes of the Act may be whether it involves the appropriate level of stability.

• One should perhaps not make too much of this. In Harley v Robertson it was conceded on behalf of the parties that Ms Harley and Mr Robertson had been cohabiting for the purposes of the Act. So the sheriff did not actually have to decide the matter. His remarks were simply indicative of what his approach would have been if he had had to decide the matter. Nevertheless, they provide some useful guidance.

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: fiona@mitchells-roberton.co.uk

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