Couples who cohabit should make it formal

In some circumstances 'no will' could be better for the survivor than an 'old will'. Picture: TSPL

In some circumstances 'no will' could be better for the survivor than an 'old will'. Picture: TSPL

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THE Office for National Statistics has revealed that the number of families made up of a cohabiting couple with or without dependent children increased from 2.2 million in 2003 to 2.9 million in 2013, yet there is still a wide ignorance of the Family Law (Scotland) Act which spelled out their rights and obligations.

Under the act, the survivor can make a claim on the estate when a partner dies intestate, although there is a time limit of six months to bringing it. The survivor could receive up to the same amount as a surviving spouse would get under the law of intestacy but, unlike the marriage situation, this is not automatic.

In some circumstances “no will” could be better for the survivor than an “old will” drawn up years earlier, under totally different circumstances; if the will was never revoked then the surviving cohabitant is not in a position to claim under the act.

The second type of claim possible is for one party to seek a cash settlement when the couple drift apart. However, despite this issue going to the Supreme Court recently, there is still a lot of uncertainty about the outcome of these cases. Under the act, any award is discretionary, therefore someone seeking to bring a claim is essentially taking a gamble, and again there is a time limit on claims – albeit one of 12 months.

Crucially, the right is limited to a claim for a sum of money as compensation. The court cannot order sales or transfers of property or pension-sharing arrangements as it could do in a divorce case.

A sensible solution to this uncertainty is a formal, legal cohabitation agreement setting out rights and obligations should a relationship end. This will negate the cost and uncertainty of litigation.

This may seem a pessimistic option for a happily unmarried couple, yet young people who take out life insurance and make a will still expect to live to a ripe old age; all they are doing is covering themselves, and their loved ones, for every possible eventuality.

Indeed, in removing a large degree of uncertainty, a cohabitation agreement may even have the effect of strengthening a relationship, whether the couple decide to remain unmarried or eventually tie the knot.

• Jennifer Gallagher is a partner with Blackadders and is accredited in family law

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