The Law on Cohabitation in Scotland and Proposed Reform

Published byIona Whyte

5th July 2023

Partner, significant-other, cohabitant? Cohabitation is a term that applies to many unmarried couples in Scotland, though we may not be aware of it.

The law in Scotland has developed over the last 20 years to provide a framework of rights to protect the interests of those in such relationships and proposals have been made to extend these further.

The current rules are set out in the Family Law (Scotland) Act 2006, which defines a cohabitant as either member of a couple living together as if they were husband and wife or civil partners. When seeking to enforce these rights, there is a wide discretion in determining whether two individuals are/were cohabitants.

What most unmarried couples may not realise is that the law does offer them some protection should there be a change in circumstances. In particular, the 2006 Act created two rights, a right to claim on separation and to claim on death.

Separation

Whilst there is no automatic entitlement for cohabitants to any financial award following separation, separating couples can seek limited orders from the court in the form of a capital sum and financial assistance in respect of caring for a child of the relationship. Currently, the law only allows the claim to be in the form of a single lump sum payable in full or in instalments.

A cohabitant has one year after separation to reach an agreement on financial provision and for that agreement to be implemented. If that does not happen, court proceedings require to be raised against the other party.

Death of a cohabitant

These provisions only apply where a cohabitant dies without a will. The law allows the surviving cohabitant to make a claim in their deceased’s partner’s estate. However, the time limit on the claim is 6 months from the date of death and the couple must have been living together prior to death. This can be a delicate time frame to navigate and seeking legal advice early on is essential.

Reform

Following calls for reform to expand and clarify the law on cohabitation, The Scottish Law Commissions issued a report in November 2022 proposing reform of the law in respect of couples whose relationship ends in separation. The proposals however, do not extend to the law where a cohabitant dies intestate.

Significantly, for separating couples, the proposals include:
- redefining the definition of cohabitant with reference to the characteristics of the relationship, rather than defined as a de facto marriage;
- the introduction of a range of new remedies following separation, such as a property transfer orders and payments for short term financial relief; and
- the ability extend the time limit for claims by agreement.

However, these proposals remain simply that at this stage and couples in such relationships which come to an end, should seek legal advice as to the current provisions that apply to them. It is also worth mentioning that no such protection exists in England and Wales.