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The clock is ticking for cohabitees making claims under Sections 28 and 29

Sections 28 and 29 of the Family Law (Scotland) Act 2006 represented an important development for “cohabitants” in Scotland. They gave new rights to those in relationships where they weren’t married, but had been living with a partner in a way which could be described as living together “as if they were husband and wife/civil partners” to make claims on the relationship ending.

A claim under section 29 can be made by a surviving “cohabitant” if: their partner has died; the relationship was still ongoing at the time of the death; and the deceased partner did not leave a Will. A section 28 claim can be made where the couple have split up, and can be for help with the financial burden of caring for their child, and/or if one of them has been economically advantaged by the efforts and contributions of their partner during the relationship, or experienced economic disadvantage in the interests of their ex-partner and/ or a child who they have either had together or accepted responsibility for.

There is, however, a trapdoor, easy for people who might otherwise fit the definitions to fall into. Someone looking to make a claim under s28 has to “make an application” within one year of the relationship ending, while a s29 application must be made within six months of the death.
In Knight v Henderson, the Sheriff Appeal Court considered what a person needs to do to be deemed to have made an application, and therefore beat the time limit. Their conclusion was that for an application to be made, it must be “served” on the person against whom the claim is being made. That is usually done by: their lawyer accepting court papers for them; sending the papers out to them directly by recorded delivery post; or having the papers delivered to them in person by Sheriff Officers.

In limited circumstances, where the court is satisfied the person cannot reasonably be tracked down, an alternative method might be allowed – such as placing a notice in a newspaper local to the area where the person was last known to be living, or on the walls of the court which will deal with the case.

There is currently no discretion to allow late claims. If a claim isn’t prepared and served within the time limit, the right to claim will be lost. The thinking behind the time limit – to avoid a person or estate being exposed to claims that are “stale” long after death or breakup, and having to budget for that possibility – is reasonable. However, it is a short period for someone dealing with a breakup or loss who may need to move house, make new childcare arrangements, or adjust to a new set of financial circumstances, to instruct a lawyer and have a Writ served. Time might be tighter still if a partner has moved abroad, as it can take several months to effect service in some jurisdictions.

These potential difficulties, and the recent confirmation that service is required to beat the time limit, mean anyone who may wish to pursue these claims must be aware of the tight timescales.

Proposals for reform made by the Scottish Law Commission before Christmas may lead to a slight easing of the strict time limit rules which arise after cohabitants split up (the reform of claims following a cohabitant’s death are being considered separately as part of the reform of Succession law).

The Commission suggested Sheriffs and judges are given discretion to allow late claims on “special cause shown”, as long as the “late” application is made no more than two years from the relationship ending; and that couples could also agree to extend the time limit by up to six months themselves, to allow extra time to negotiate.

However, special cause is an onerous test and the report makes clear that ignorance of the time limit would not be enough. In any event, it would be some time before any changes to the existing law which the Scottish Parliament did accept would come into force. For now, people who may have the right to make a claim under s28 or s29 face a hard and fast time limit of 12 or six months to have an action served, or face losing their claim altogether.

This article appeared in The Scotsman on Monday 6th February 2023.