The number of couples cohabiting in the United Kingdom has seen a marked increase in the last decade.
In Scotland, the legal framework concerning rights of cohabitants on the ending of a relationship is dealt with in Sections 26 to 29 of the Family Law (Scotland) Act 2006. Before it was enacted, the intention of the legislation was to "create legal safeguards for the protection of cohabitants in longstanding and enduring relationships." Notably, the legislation allows for cohabitants to apply to the court for financial provision on the breakdown of the relationship or where one of the couple dies without leaving a Will.
Since the enactment of the 2006 Act a number of apparent issues in the existing legislative provisions have been identified. There are two main criticisms of the current law. The first is that the strict time limits involved in making a claim following the breakdown of a relationship (12 months) or the death of a partner (6 months) are just too tight. Individuals may not be aware of their rights, there may be emotional effects suffered following the breakdown of a relationship or the death of a loved one and individuals may be reluctant to pursue a claim shortly after the breakdown of the relationship or death of a partner through fear of the impact this may have on their relationship with other family members.
The second criticism is that the law is too discretionary which makes it difficult for solicitors to advise their clients as to the likely outcome in any particular case.
The Scottish Law Commission is currently undertaking a review of the law of cohabitation in light of these difficulties in the law. The report which is expected to be published by the Law Commission in 2021 will act as a starting point for changes to the law of cohabitation in Scotland. We hope that this project will bring some much needed clarity to Thorntons’ clients who are in cohabiting relationships.
If you have any questions about cohabitation rights in Scotland please contact Elaine or any member of Thorntons Family Law team on 03330 430150.