Noel Ferry : Updating the rights of cohabiting partners

The traditional model of marriage and family life has changed beyond recognition in recent decades. According to the Office for National Statistics (ONS)  the number of married couples grew by just 2% in the past decade while cohabiting couples soared by 25.8% during the same period.

Noel Ferry, Partner at Turcan Connell

The research, which was published in August this year also found that the number of same-sex couple families had grown by more than 50% since 2015.

Has the way in which the law treats cohabiting couples in Scotland, though, changed as quickly as the views of society in general?

Welcome changes

The Family Law (Scotland) Act of 2006 went a considerable way toward updating the rights  of cohabiting partners but couples must be aware that these are not as comprehensive as they are for married couples who divorce or suffer the death of a spouse says Noel Ferry, a partner at legal firm Turcan Connell who adds that the changes introduced by the 2006 Act were welcome.

“Prior to the 2006 act, unless they had some sort of  contractual arrangement or entitlement under the laws of restitution, cohabiting couples would have experienced significant difficulties in making a claim against a former partner or benefiting if a partner died,” he says.

“If they had invested in the other’s property they could have tried recourse to the law of unjustified enrichment but that was by no means certain, was not an easy action to raise and was rarely used as it was difficult to prove by how much they had enriched the other party,” says Ferry.

“You would have to have shown specifically that your contribution to the relationship had clearly enriched the other person – and a common response was that the claimant had benefited from living rent free in the property. Many cases were unsuccessful and the courts tended to be unsympathetic because the couple had chosen not to get married.”

Effectively, the person who had their name on the titles to the property or had hold of the purse strings was in control.

An even more difficult situation, he adds was when one partner died and their family repossessed the house, despite the cohabiting partner having lived there for several years.  “It was worse where there were children. If one party owned all the assets the other could found themselves with nothing, including nowhere to live.”

Know your rights

The situation, he acknowledges, has improved since 2006 but emphasises that cohabitees should not assume they have the same rights as married couples. The legal changes were informed by several matters, including the view that getting married showed a greater degree of commitment and thus entitled a couple to greater rights.

“Normally, that results in situations where people are entitled to more – because they have been married even a relatively short time – than cohabiting couples where the relationship might have been significantly longer,” says Ferry.

Unlike in a divorce action, the courts do not use division of the parties’ “matrimonial” property as a starting point. “They look at the general fairness of the situation for that couple and when a client asks you to make a claim or defend a claim it’s very difficult to advise them what a ‘fair’ outcome is going to be. That depends on what they can put forward as their respective contributions, advantages and/or disadvantage and is dependent on the discretion of the judge,” he says.

It’s important to remember, he adds, that an application for financial provision must be brought within a year from when the couple separates, which does not always allow sufficient time to try and negotiate a settlement before having to think about raising an action.

“Many people still don’t realise that either they have a right to apply for provision or don’t get around to doing so before it’s too late. The Family Law Association has expended some effort and funds on highlighting this – perhaps the government could have done more on the educational front – but people are frequently unsure about what their entitlement is and the time limit involved. That is where we have to advise them.” 

The time limit is even stricter in the event of the death of a cohabitee. The surviving partner must apply for financial provision within six months after the death.

There is presently no judicial discretion to extend these time limits, so solicitors must act quickly on behalf of a client who intends to claim.

Timely agreements

When the sums involved are significant the majority of cohabitation claims, says Ferry, end up in court. “This can cost a lot of money with pressure on the claimant to fund it themselves and no guarantee of success, which is a huge risk.”

A cohabitation agreement, the equivalent of a pre-nuptial for couples who are not married is legally binding and should therefore be an important part of their considerations when they decide to live together, especially if property or business affairs are involved – and can also take into account the financial needs of any children they might have.

“Many cohabiting couples are now entering into these agreements,” says Ferry. “It avoids having to raise the money to pay for a claim that goes to court with no guarantee that you will get the result you hope for, the potential financial consequences of that and the stress of waiting perhaps a year or so before you get a result.

“Such an agreement provides certainty and it’s a sensible way of giving both parties a degree of confidence as to what will happen and that they are going to be adequately provided for in the event of separation or death.”

For more information please visit www.turcanconnell.com