Lord Justice Toulson commented yesterday that property laws for cohabiting couples are"unfair". He was of course referring to the law of England & Wales, in the case of Curran v Collins (2013 Court of Appeal Civil Division).
In Scotland, since May 2006 cohabiting couples have had the right to make a claim against each other in the event of separation or death (where the deceased has left no will in place). The Act was designed to remedy some of the injustices that can be caused in the event of a cohabitation coming to an end, but stops short of putting cohabitants on the same footing as married couples. A cohabitant can make a claim based on economic disadvantage suffered by him/her in the interests of their partner, or of any children of the relationship. They can seek the payment of a sum of money which can be in a lump sum or instalments, but they have no right to payments of ongoing support (known as aliment for spouses) nor for the transfer of any property – for example the family home. Strict time limits apply and any claim must be made within one year of separation, or within six months of death.
A Scottish case was appealed to the Supreme Court last year (GOW v GRANT 2012 UKSC 29) and Lady Hale said there that"the Act has undoubtedly 'achieved a lot for Scottish cohabitants and their children.' English and Welsh cohabitants and their children deserve no less." Whilst Scottish lawyers practising in this field might feel that the Act has some way to go to really address these issues properly and fairly, it is nevertheless the case that at least here remedies do exist in a way that they do not South of the border. Given the decline in couples choosing to marry and the increase in couples choosing to live together and to have children together without being married, these issues are only going to become more prevalent as time goes on.