The number of couples choosing to live together without entering into marriage or civil partnership continues to rise annually. In August 2019 the Office of National Statistics reported a UK increase of 25.8% between 2008 and 2018, representing a major shift in the way we love and live. Together with the many cancelled weddings this year, accelerated decisions to live together during lockdown may inflate that statistic in 2020.
While cohabitation is considered a normal way to forge a family, awareness of the rights and responsibilities attached to the living arrangement remains poor. In Scotland there is a misconception that cohabitants can rely on the relationship status of “common law marriage” or “marriage by habit and repute” to access benefits after their partner’s death or separation. In reality the potential to establish such ‘marriages’ was largely extinguished by the Family Law (Scotland) Act 2006, which introduced new rights and obligations for cohabitants, which do not nearly equate to the rights of married couples.
One significant distinction is that cohabitants have no automatic entitlement to inherit from their partner’s estate on death, no matter how long and committed the relationship. If the deceased died without a Will the survivor must raise a court action within six months of death in order to claim against the estate. The court has broad discretion on the level of award, if any, it makes, provided it is no more than a widow would receive. If the deadline is missed, the right to claim is lost and the estate is distributed to the deceased’s blood family and, in the worst case, the estranged spouse the deceased did not divorce. If the deceased has a Will, the survivor has no right to claim. It follows that cohabitants who do not want serious financial ties should make a Will. Others should ensure their partner is adequately provided for in their Will to avoid the emotional and financial upheaval of litigation after their death. Survivors can be devastated to discover that their partner died with an old but valid Will pre-dating the relationship – a situation that can be avoided with adequate planning.
The difference in financial compensation available on separation is also stark. Put briefly, the 2006 Act provides that former cohabitants can apply to court for payment of a sum of money from their ex within 12 months of the date of separation. The court must consider whether either party has derived an economic advantage from contributions of the other, or suffered economic disadvantage in the interests of other. It can also make an award to reflect the burden of having to care for a child of the family but unlike in divorce, it cannot award ongoing financial support for day to day living expenses (child maintenance is a separate matter). Beyond that we are given limited guidance on what is “fair”, making it difficult for family lawyers to predict outcomes for clients. Another major limitation of the 2006 Act is that it prohibits courts from ordering the transfer or sale of property, including the family home. To secure this outcome a different form of civil action must be raised, adding to the procedural complexity and expense. For some, a claim for unjustified enrichment or division and sale might give better redress.
Earlier this year the Scottish Law Commission (SLC) launched a consultation to re-examine the legislation governing claims by cohabitants on separation following calls for improvements and modernisation. Among other things it asks: Should the regime for cohabitants on breakdown of a relationship be the same as that for spouses and civil partners? Should wider remedies, such as property transfer, pension sharing and maintenance be available to former cohabitants? These are significant questions with potential to fundamentally change the economics of living together. The discussion paper can be found here.
The deadline for responses has been extended until 30 June 2020.
In the meantime we must increase awareness of the current regime to ensure couples are aware of the risks it presents. Those who are or considering cohabiting should take advice on what steps can be taken in order to give them certainty in the event of the worst happening.
This article featured in The Scotsman on 18 May.