For some, this is a way to "test the waters” prior to formalising their relationship by marrying or entering into a civil partnership. For others, cohabitation is a positive commitment and long-term arrangement.
But if there is a danger that love might damage the size of your bank balance, then it's a good time to get a lawyer involved. What you might already know is that in Scotland, we are ahead of many jurisdictions in providing cohabitants the right to seek financial awards from their former partner in the event of relationship breakdown.
What you might not know is that the law on cohabitation in Scotland is currently being reviewed. On November 2, The Scottish Law Commission published its Report on Cohabitation. The report considers how the existing law governing the rights of cohabitants on separation might be amended and follows a lengthy consultation process with solicitors, academics, members of the public and decision-makers.
The recommendations made by the commission include the following key points:
Revisal of the definition of “cohabitant” (which currently makes reference to parties living together as if they were married or in a civil partnership) and how a court might assess whether parties are indeed cohabiting. Being involved in an “enduring relationship” is the new recommended key test, with all circumstances of the parties' relationship being taken into account. Specific reference to fairness. It is recommended that “fair” account should be taken of any economic advantages gained, or disadvantages suffered, by either cohabitant during the relationship; and “fair” sharing of the economic burden of childcare. As things stand, the courts have attempted to deal with matters in a way which leads to fairness, but no specific reference to the concept of "fairness" appears in the legislation, so this would bring much-needed clarity. Provision for relief should either party otherwise be likely to suffer serious financial hardship following the relationship breakdown. The introduction of a greater range of remedies than those currently available as part of a cohabitation claim (currently restricted to payments of money). Property transfer orders (eg a house being transferred from one party to the other). Payments for short term relief from serious financial hardship (up to a maximum of six months). Orders for valuation and sale of property; regulation of who occupies the family home and for payments relating to the home. Interim orders and Ancillary orders to specify the date for payments/transfers.
Also included is discretion for courts to allow late claims on “special cause shown” (currently claims are subject to a strict one-year time limit from the date of the parties' separation, which can lead to unfair outcomes in certain cases) and the ability for parties to be able to extend the time limit for claims by agreement. This will allow time for parties to engage in constructive negotiation over a longer period prior to commencing court action;
There is also provision specifying what should happen where parties have entered into formal written agreements prior to, or during, their cohabitation. The report has been presented to the Scottish Parliament. It is expected the Scottish Government will now carry out its own consultation and take forward the proposed draft Bill with a view to amending the existing legislation.
Susie Mountain is a Partner and Solicitor Advocate, Brodies LLP