Claire Christie: Scots divorce law can still be minefield

The law on divorce in Scotland is codified and fairly settled as a result of the Family Law. Picture: Ian Georgeson
The law on divorce in Scotland is codified and fairly settled as a result of the Family Law. Picture: Ian Georgeson
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SEPARATION is on the minds of many, writes Claire Christie

Whilst some people may have losing weight or stopping smoking at the top of their New Year’s resolutions list, others may have separation on their mind. January to March are said to be the months couples are most likely to separate.

It is not hard to imagine why people may wish to delay taking such a big step until the festivities are over for the sake of children or wider family. For others, spending more time with loved ones over Christmas and New Year may serve to emphasise that a relationship is as past its sell-by date as the left-over turkey.

Office of National Statistics figures show cohabiting couples in the UK grew by 29.7 per cent between 2004 and 2014, making them the fastest-growing family type. Anyone unaccustomed with family law in Scotland might think that in 2016, your status wouldn’t greatly affect your rights and obligations on separation.

But while the definition of a cohabiting couple in Scot’s law is “living together as if man and wife”, that is where the legal similarity ends. The two relationship types are treated very differently in law. Only married couples have the benefit of legal certainty.

However, Scots law has a long tradition of allowing parties the freedom to contract with one another and anyone entering a new cohabitation relationship or marriage would be well advised to put a Will, Pre-nuptial Agreement or Pre-cohabitation Agreement on their 2016 to-do list.

In Scotland, the law on divorce is codified and fairly settled as a result of the Family Law (Scotland) Act 1985. In most cases a spouse will leave their initial meeting with their lawyer knowing what is expected of them and what assets they will be entitled to share when dividing the “fruits of the marriage”. With their respective solicitors, it is often possible for parties to identify and value the matrimonial assets either on an individual or joint basis before arriving at a negotiated settlement.

Such a settlement can then be enshrined in a formal legal contract before the parties are formally divorced. Parties can gain even more certainty by entering into a Pre-Nuptial Agreement.

Unlike a spouse, a former cohabitant who has lived in their partner’s property for many years has no automatic right to continue to occupy that property. There is no legal duty to financially support a former cohabitant who may have been used to such support over a long period. If former cohabitants own a home jointly and one party wants or needs the property going forward, there is no remedy to have the property transferred from joint names into the sole name of one party.

In short, as a former cohabitant, there is no automatic right to receive anything after separation. What the law provides for is the somewhat woolly right to make a claim for financial provision on cessation of cohabitation if a former cohabitant considers that they have been economically disadvantaged by the relationship to the other parties’ economic advantage.

The situation is also unsatisfactory for cohabitants whose partner dies. If the deceased left no Will and the parties were still residing together as a couple at the date of death, it is possible for the former cohabitant to make a claim on the estate but he/she will never receive as much from the estate as a spouse whose husband or wife died without a Will.

• Claire Christie is an Associate at Harper Macleod LLP