It has long been a popular myth in Scotland that a couple who have lived together for any length of time are in a "common law marriage" and that they each have the same sort of rights as a married couple in the event of separation. In certain rare cases it used to be possible to establish a marriage as a result of lengthy cohabitation and that is where the myth was born.
Since 2006 where a couple have lived together as if they were husband and wife, for any length of time, and where they subsequently separate, there is the potential for one party to make a claim against the other for an award of financial provision. In order to succeed in such a claim one party has to be able to demonstrate that he or she has suffered economic disadvantage in the interests of the other party or of any child of the relationship and/or the other party has derived economic advantage from contributions made by the person applying for the order. There is no automatic entitlement to share in the value of capital assets built up during the course of cohabitation and there is no opportunity to seek either an award of maintenance or an order that property should be transferred between individuals. The only order which can be made is for a capital sum and such awards are compensatory in nature.
Of crucial importance is that any application for an order for financial provision against a former cohabitant must be made to the court not later than one year after the termination of cohabitation.
Our family law solicitors are experienced in handling cohabitation agreement claims and can guide clients through the relevant legislation and intimate such claims. It is, however, stressed that time is of the essence.
Death of a Cohabitant
The legislation which introduced claims for cohabitants upon separation extends to the situation where one cohabitant dies while still cohabiting together with the other cohabitant. Providing that the deceased has died intestate (i.e. without making a Will) the survivor may make a claim for an award from the deceased's estate. Any such claim must be formally instigated to the court within six months of the deceased's death.
It is stressed that any potential applicant should contact us as soon as possible because, again, time is of the essence.