A couple who live together who are not married or in a Civil Partnership may have rights to make a claim in the event that:
- one of them dies whilst they are living together
- they separate
These rights, called cohabitees Rights, are not the same as the rights given to spouses or civil partners.
The law is complicated when it comes to cohabitation rights. In the event of any claim being made a court will consider:
- How long the couple have been living together
- The nature of their relationship during the time they have lived together
- The degree of financial dependence and financial arrangements they have made
This is not an exhaustive list, there are numerous aspects of a couples relationship which can be examined and taken into account in deciding whether a claim should succeed; such as whether they have made arrangements for each other on death, whether they have joint banking arrangements and the such like. All of the information helps to build a picture for the court as to the couples intentions during their relationship.
It is possible for a couple either living together or contemplating living together to enter into an agreement which sets out their intentions for their relationship. This may save time and expense later in the unlikely event of a separation. The agreement should narrate what the couple wish to happen in circumstances of a separation.
What Claims Arise?
- On death
The surviving cohabitant may only make a claim from a deceased cohabitant if:
- the deceased cohabitant did NOT leave a Will
- the deceased cohabitant was domiciled in Scotland immediately before their death
- the deceased cohabitant and the surviving cohabitant were cohabiting at the time of death
If a claim is to be made by a cohabitant on the death of their cohabitant, it must be raised quickly. The surviving cohabitant must raise the claim at court within 6 months of the date of death of the cohabitant.
The court has a wide discretion as the amount it can award a surviving cohabitee, it is case specific and relies very heavily on the nature of the relationship of the couple prior to the death. However, a surviving cohabitee cannot receive an award which would be more than they would have, had they been the spouse of the deceased.
There could be circumstances in which the deceased left a spouse and a cohabitee. Both may have claims on the deceased’s estate.
Certainly, if the above circumstances apply, the surviving cohabitee should obtain legal advice as soon as possible.
- On Separation
In a case where a cohabitating couple separate, the starting point is that there are no automatic rights to make a claim. In general terms if one cohabitee has suffered an “economic advantage” and their cohabitee, at the same time, has suffered an “economic disadvantage” as a result of the cohabitation, a claim may be pursued.
The claims which may be raised are:
- payment of a capital sum (almost described as compensation for the loss which has been suffered)
- payment equating to the costs of caring for a child of the cohabiting couple after separation
- payment of money or in respect of any property which was acquired by the couple during the period of cohabitation. (money/property acquired during the period of cohabitation is deemed to be owned equally by the couple, however this can be argued)
Cohabiting couples cannot claim maintenance from each other in respect of maintenance of themselves. They can however claim maintenance in respect of children of the relationship. The scope of claims which may be raised by cohabitees are very much narrower than claims which can be made by spouses or civil partners may have on separation.
There are no other claims available to a cohabiting couple, so for instance they cannot claim pensions nor ask the court to transfer the the house they may own together into one of their sole names. Such claims are only available to married couples or those in Civil Partnerships.
There is a time limit placed on making claims on separation. Each cohabitee must raise the claim at court within 1 year of the date they separated. Should that deadline be missed the right to make the claim is lost.
It is vitally important that any cohabitee who is in the position of having their cohabitee pass away or is thinking of separating take legal advice quickly.