Naomi Pryde: Being prepared for the worst is the best idea for couples

TWO cases involving former cohabiting couples have made news. In England, a landmark ruling on cohabitees’ property rights arose after Patricia Jones won her appeal at the Supreme Court and was allowed to keep 90 per cent of the value of her home.

In Scotland, Julie Anne Zelent is suing her former partner for £500,000 after having given up her job to move to Scotland and live with him.

Although both involve cohabitants, they also highlight the difference between the Scottish and English systems and the difficulties involved when cohabiting couples separate whether north or south of the Border.

Cohabitees in England are offered no degree of protection upon their separation as there is no legal framework for cohabitants.

Patricia Jones’ case involved aspects of property law, and in England it is presumed that upon separation, jointly purchased property should be divided fairly in a 50/50 split, unless the parties can displace that presumption, by showing they had a different common intention (as Patricia Jones did).

But in Scotland, cohabitants have certain rights and are therefore better protected under the Family Law (Scotland) Act 2006. There is also some protection for cohabiting Scots in that a capital sum can be paid to balance the economic advantages derived by either cohabitant from contributions of the other.

Many Scottish cohabitants, however, do not realise that that their relationship is subject to legislation. Those that are aware that they have rights still labour under misapprehensions, for example many cohabitants in Scotland think that they need to live together for at least two years before the legislation kicks in. The reality is that there is no time limit imposed by the legislation before they have a claim, although there is only one year from separation in which they can make the claim.

A way of avoiding having to go to court is to have in place a cohabitation agreement. Having a written note of intention makes things slightly easier – and substantially cheaper.

• Naomi Pryde is a family law solicitor at Tods Murray