Sarah McGregor: Splitting couples pay price for being unaware of the law

Published on Saturday 1 March 2008 15:47

MOST people are aware that they can make a financial claim upon divorce. High-profile celebrity break-ups ensure that divorce remains in the public eye.

Perhaps thanks also to celebrities, most people are aware that same-sex couples can now tie the knot and become registered civil partners. When civil partners break up they can make the same financial claims as married couples.

What then of unmarried cohabitants, who make up an increasing proportion of families in Scotland?

Perhaps the celebrities are as unaware as the vast majority of Scottish citizens that when a couple who have been living together split up they too can make a financial claim against one another in the Scottish courts. But only if they are quick. And only if they were living together in Scotland.

The Family Law (Scotland) Act 2006 came into force on May 4, 2006, and gives legal rights to cohabitants to make a financial claim should they break up or should one of them die without a will. The Act does not apply to people living together as a couple in any other part of the UK, though Westminster is considering a change in England and Wales.

The problem is that the general public in Scotland do not appear to be aware of their rights, and so unfortunately many thousands of people may be losing out. There is a strict deadline of one year within which to make a claim if you split up, but you have only six months if you are claiming upon your partner's death. A lack of knowledge of this law will not excuse a late claim.

For cohabitants to make a claim, they must have been living together as if married or as if they were civil partners. There is no minimum period of cohabitation before the law applies.

You can make a claim against your former partner if you have suffered economic disadvantage during the cohabitation, or if your partner has benefited economically from you during the relationship.

For example, one person might have put a lot of money into the relationship, perhaps by paying off the other's debts, or by supporting the other through university or unemployment. Alternatively, one person might have sold their house and moved in with the other and just spent the sale proceeds on joint holidays and treats for them both.

The economic advantages and disadvantages need not be directly financial. For example, picture a couple who move in together: both working and both with promising careers. They start a family and the woman gives up work to look after the children and home. Her career is interrupted while the other person's career develops as it should. What happens should they split up? He has gained and she has lost. Scots law now allows the courts to balance the economic advantages and disadvantages of each party.

If a claim is to be made then a case must be raised in court within 12 months of the date when the couple stopped living together as husband and wife. If the claim is late it does not diminish; it vanishes completely.

If the couple's relationship deteriorates slowly and steadily so that at some point they can no longer be said to be living together as if husband and wife then the clock starts running from that date rather than from the date when one or other of them walks out of the door. It is quite possible that the 12-month time bar will kill the case even before the couple actually separate.

It is even more complicated when one of the parties has died, because the surviving cohabitant has a claim in the estate of the deceased partner only if the claim is made at court within six months of the death.

This claim may be more significant than one made after separation because it can include the parties' house where they were living.

The claim on death depends on several conditions, the most important being that the deceased must have died without a will. The theory is that if they left a will at all and had wanted their partner to benefit from the estate they would have mentioned them in the will.

Why do people not know about this? Chiefly it's because the law applies only to Scotland. When England gets its cohabitation statute in about 2010 it will be all over the national news.

Too many people are under the misconception that they have a claim because they are 'common law spouses'. It is strange that in an era when the myth of the 'common law wife' is still widespread there is a general public lack of awareness about the valuable statutory rights which do exist in Scots law.

Every day there are people walking on the streets of Scotland with potential claims that are about to vanish. Lawyers aren't in a position to tell people about these claims unless people come to them to ask them about it – and people don't know to ask. Perhaps we need a celebrity to make the first move.

Sarah McGregor is a solicitor at Fyfe Ireland