Kirsty Malcolm: Why mischief prompted new book on cohabitation

MANY people still believe today there is such a thing as a “common law husband/wife” - and with that status, there are legal rights and protections available to them. Just exactly what people perceive those might be is not entirely clear, but it seems to come down to a belief that their position in law is as good as that of a couple who have married.

It was of course historically the case in Scots law that the fact of living together as if husband and wife could result in an irregular form of marriage (marriage by reason of cohabitation with habit and repute). However, being able to establish all the necessary elements for a court to agree such an irregular marriage had been established was difficult - especially in recent years where society has considered cohabitation (living together as if husband and wife) as a lifestyle choice where people deliberately choose not to marry.

That was undoubtedly one of the underlying reasons behind the abolition of such a form of irregular marriage, for cohabitations which began after May 2006. Of course, the same legislation which abolished irregular marriage also introduced certain limited rights for former cohabitants to make financial claims against ex-partners.

The mischief (the consequences of the misunderstanding of the legal position) that change in the law was designed to prevent was the mistaken belief that rights were created just by reason of having lived together as husband and wife. This is one of the key reasons I and my co-authors felt a new edition of our book Cohabitation was pertinent and necessary.

The new law, embodied in the Family Law (Scotland) Act 2006, created new rights for cohabitants whether of the same or opposite sex. The provision in this legislation of basic rights for cohabitants was considered by many to be a controversial matter, and despite the possibility of introducing legal rights for cohabitants being considered as long ago as 1992 by the Scottish Law Commission, it took more than two periods of consultation before the Scottish Government could be persuaded to act.

Those who live together as if husband and wife, or even as if civil partners, do now, however, have rights as a matter of law, and reliance on a false belief should no longer necessarily result in financial hardship or inequality. In the 2006 Act, either when a cohabitation breaks up due to the end of the relationship, or as a result of the death of one of the parties without leaving a will, there are mechanisms available to allow a cohabitant to make a financial claim against the other person, or their estate. Certain basic legal tests have to be overcome before such a claim can be considered, and ultimately whether or not to make an order for financial provision lies entirely within the discretion of the court.

However, it is clear from recent research that the general public remain largely ignorant of the possible remedies available in terms of this legislation. That, coupled with the fact that any claim under the 2006 Act has to be made within one year of the relationship ending or six months of the partner’s death, means many might still be denied legal protection. Without better public awareness, the past problems might still remain.

Difficulties for former cohabitants in obtaining any benefit from the new law are not restricted to there being a lack of knowledge of its existence and potentially being time barred from making a claim. The drafting of the legislation in relation to potential claims during parties’ lifetimes (section 28) has given rise to many difficulties for legal advisers in trying to assess how it should be applied, and interpreted. The unfettered discretion that lies with the court in determining whether or not a claim should be upheld, either following the breakdown of the relationship or following a partner’s death, also makes it very difficult to advise clients of the potential for success or otherwise. While in the main the legislation is to be welcomed, not least for potentially addressing the generally held misconception of “common law marriage” creating rights, it comes with difficulties. Although it has now been in force for five years, there is still limited judicial consideration of its terms, and there remains limited guidance on its application. A better working knowledge and understanding of the provisions is developing, and it is hoped this will continue over time, to ensure the mischief the law was designed to address, can indeed be addressed.

• Kirsty Malcolm is an Advocate, Murray Stable. The 2nd Edition of Cohabitation by Kirsty, Fiona Kendall and Dorothy Kellas is published by W. Green

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