Currently, people who cohabit – living together as if they were a married couple, or in a civil partnership, but not in either – receive protections and benefits when they split or one of them passes that fall far short of those afforded to those in legal relationships.
This leaves a sizeable segment of the population legally left behind should they choose not to enter into a formal arrangement, and grappling with a significant degree of uncertainty.
Cohabitation is a growing trend, and has been accelerated by the pandemic.
Lockdowns have brought people together under one roof in increasing numbers, and – for others – brought forward existing plans to move in together. In 2021, the Mortgage Advice Bureau released data that showed a 60 per cent year-on-year rise in the number of cohabitating couples submitting joint mortgage applications in 2020.
Now more than ever, there is a real need for the law to more closely align with the picture of our society, and to provide a stronger, more predictable framework for achieving fairness. Scotland has a chance to deliver real change.
The letter of the law
As the law stands, cohabitees in Scotland face a potentially lengthy, court-led, process if they want to make a claim against a former or deceased partner, with no sure result.
If two individuals cohabited and one partner dies, the surviving individual can make a claim against their estate, provided the deceased does not have a will. This is irrespective of how long the relationship has lasted.
The surviving individual will also need to move quickly to start a claims process, only having six months after their partner dies to file a claim in court.
Claims made against partners who are both still living similarly have no guarantees, although they have a longer period – one year – in which they must begin the process.
Importantly, in all cases the court can only award capital sums – ‘pots’ of money – to former cohabitees. They can’t split or share assets like property in a divorce situation.
The Scottish Law Commission’s review is gathering expert responses to a range of questions about how the law is working and where it could be improved in relation to separation situations.
The path forward from the report’s publication – scheduled for this year – is unknown. But there are many potential changes that lawmakers could make on the back of any recommendations that the Commission may deliver.
Change afoot – providing clarity
One option could be to more closely align rules about financial settlements for cohabitees to the rules currently in place for people in married or in civil partnerships, as set out in the Family Law (Scotland) Act 1985.
The purpose of making an award to a cohabitee is to remedy what the court determines to be a relative financial advantage or disadvantage stemming from the relationship. The primary focus of court decisions has been to try and achieve fairness.
For example, a couple who were unmarried, but who the courts otherwise accept were cohabiting, might have raised children together – with one parent leaving work to become the primary caregiver, and the other continuing to earn.
On the breakdown of the relationship, there are no automatic financial provisions for the caregiving individual, despite what could be significant loss of earnings.
The existing option to claim a capital sum is a valuable way to remedy what could be a serious financial situation, in a fair way.
But the process is currently vague, and the range of awards given can vary wildly in what are otherwise similar circumstances.
This makes it very difficult for lawyers to advise clients on what they can expect should they proceed with a court action. And, ultimately, it leaves a claimant with the possibility that they could finish the process with less than what they started with – potentially exacerbating the challenges for claimants who could already be financially vulnerable.
Strengthening the award principles for such cases would at least provide much-needed clarity as to cohabitees’ options, although the Scottish Law Commission is only looking at the separation situations. The claims on death will need to be part of a wider succession law review which has been ongoing for some time, with no indication of when changes might be recommended.
Expanding award options
Another change could be to widen the type of settlements that can be awarded beyond simple capital amounts – for example, to include property transfer orders or property sales.
Lawmakers could again look to the Family Law (Scotland) Act 1985, which has this in place for married couples and those in civil partnerships.
It would be a matter for more careful, thoughtful debate as to what circumstances this would apply in death situations, but doing so could provide additional and vital security for those who might otherwise be left effectively homeless on the passing of a long-term partner.
Any extension to the awards available should, however, come with the option for individuals to contract out of these arrangements.
It simply isn’t realistic or fair to expect that every couple which chooses not to get married or enter into a civil partnership will want the same degree of financial integration.
The road ahead
Parallel to any review, more education will be needed on what cohabitation is – and isn’t – and what specific risks and challenges cohabitees face. And eventual change needn’t mean a total overhaul.
But it is essential that our legal structures align with how we choose to live, and that they are addressed swiftly when they fall out of step. For cohabitation, that time is now.
Noel Ferry is a solicitor advocate and partner in the Glasgow office family team of law firm Weightmans; former vice-dean of the West Lothian Faculty of Solicitors, and former treasurer of the Family Law Association Committee