Some common questions relating to co-habitation are answered by the FLA
The Family Law (Scotland) Act 2006 came into force on 4th May 2006. It applies only to Scotland. This has made a number of significant changes in the law relating to divorce, separation and to family life in general.
The periods of separation for divorce are now significantly reduced.
Opposite and same sex couples who are cohabiting (that is not married and not having entered into a civil partnership) will now have certain rights in the event of their relationship terminating or on the death of one of the couple.
Some common problems encountered:
The Family Law (Scotland) Act 2006 abolished marriage by cohabitation with habit and repute except in certain circumstances. If you were in such a relationship before 4th May 2006 and the relationship is either continuing or has ended after 4th May 2006 you could still be able to have your relationship declared to be a marriage. Also if you were in such a relationship before 4th May 2006 and it ended before that date you may still have the right to apply to the Court.
A Family Law solicitor will be able to advise you on whether the particular circumstances of your relationship would enable you to make an application to the Court. If you are in doubt about whether you might have the right to apply to the Court for a marriage to be declared you may have rights under the Family Law (Scotland) 2006 as a cohabitant.
I have been living with my partner and we have 2 children together . I am worried what would happen if he dies or we split up . I have been told that I have no rights. Is that correct?
From 4 May 2006, couples who choose to live together rather than marry have certain rights under the law although prior to this date simply living together gave cohabitants very little legal protection.
Where a couple (same sex or opposite sex) live together, then anything which they acquire during that time, apart from money, cars, pets gifts or items which are inherited, will belong to them equally.
The law also now states that where any money is saved from housekeeping, or if property is bought from housekeeping money (regardless of who provided the money) cohabitants have equal right to share in that money or what has been purchased with it (apart from the home they live in).
If a couple split up, either one can apply to the court for up to a year afterwards for an order to pay a sum of money by way of compensation for the cohabitant who considers they have lost out financially. The court would look at all the circumstances including whether the person applying to the court has suffered economic disadvantage (usually loss of earning capacity, capital etc) and whether the other party has benefited from the other's contributions e.g. looking after the couple's children.
Where one member of a cohabiting couple dies the rights which the surviving member of the relationship has depends very much on whether or not the deceased made a Will. If there is a valid Will the new provisions in the Family Law Act 2006 do not apply. The terms of the Will rule. If there is no valid Will the surviving cohabitant can make an application to the court (within six months from the date of death) for a capital sum from the deceased's estate. The court will take a number of matters into consideration including the size of the deceased's estate and any other claims against the estate by e.g. a wife, children.
The rights which the new Act gives to couples who decide not to marry or enter a civil partnership are still very limited. It is always possible for you and your partner to reach agreement on what would happen to all of your assets if you were to split up. You could also reach some agreement about who would look after any children, and deal with other matters which you think are important.
It is also worthwhile making Wills. Consulting your Solicitor will allow you to address all of these issues and find the solution which is right for you.