If you are thinking of taking the plunge and moving in with your partner give some thought to the following.
Even if you have no intention of getting married, since 2006 in Scotland the law has given rights to former cohabitants to make financial claims in certain circumstances when the cohabitation comes to an end. Cohabitants are defined as a man or woman who are living together as if they are husband or wife or in a same sex marriage. To be considered as cohabitants, the courts take into account the length of time you have lived together, the nature of the relationship and the nature and extent of any financial arrangements between you both.
There are significant financial consequences should you separate or if one of you dies. Section 28 of the Family Law (Scotland) Act 2006 provides for a balancing of economic advantage/disadvantage experienced by you both. For example, if one of you put more capital into the purchase or renovation of your home thus giving a financial benefit to the other, they may able to make a claim for reimbursement of this. Alternatively, one of you may have stayed at home to care for children to allow the other to pursue a successful career and accrue significant assets or pensions. A court could make an award to address the financial imbalance after the couple separate. This claim has to be made within 12 months of the date of cohabitation ending. Alternatively, should one of you die without having made a will, the other will be able to make a claim on your estate provided it is within 6 months of the date of death.
Unfortunately, despite this having been the law for over 10 years there are still very few reported decisions from the courts. This means that it is not straightforward in advising clients what the outcome might be. This uncertainty can be avoided by giving some thought in the good times to what might happen in the bad times.
If you are thinking about moving in with your partner, we would advise you to consider entering into a cohabitation agreement. This can provide for financial arrangements during the relationship and in the event of your separation. This can be a more cost-effective approach than applying to the courts for financial provisions to be made. Cohabitation agreements provide a degree of control and certainty for your future. Separately, making a will in these circumstances will ensure that your estate is distributed as you would wish.
Morgans provides a wide range of legal services. Our Family Law solicitors have a wealth of experience in advising clients on these issues. Get in contact with us on 01383 620222 should you wish to discuss this further.
Brian Tait – Partner – briantait@morganlaw.co.uk
Russel McPhate – Partner – russelmcphate@morganlaw.co.uk
Amina Suhail – Trainee Solicitor – aminasuhail@morganlaw.co.uk
