Cohabitation in Scotland - Some common misconceptions

04/05/2013

Recently, the end of a ‘common-law relationship’ was given new status in British Columbia, Canada, according to the attached article which makes very interesting reading.

Link to article: When love ends, family law takes over

Indeed, the indication is that anyone living in a ‘common-law relationship’ for at least two years will be treated the same as if they were spouses insofar as the division of property, if they ultimately separate.

Most practitioners of Scottish family law would find the concept of aligning the rights of cohabitants with those of spouses when a relationship breaks down pretty far reaching not to mention, foreign. The position in Scotland is very different indeed. Despite this, there remain common misconceptions in Scotland about the position of cohabitants, particularly the supposition that a period of living together can result in ‘common law marriage’ and create ‘common law’ husbands and wives.

There are no such concepts in Scotland. Likewise, there is no automatic entitlement afforded to cohabitants in Scotland to share in the financial ‘fruits’ of a relationship. That is not to say that there are no rights whatsoever afforded to cohabitants but these are significantly different from those which are afforded to spouses where a marriage breaks down.

What rights do cohabitants have in Scotland where a relationship breaks down? The answer can be found in s. 28 of the Family Law (Scotland) Act 2006. This provides that cohabitants have the right to apply to the court for financial provision within one year of the cessation of the cohabitation. Where such an application is made timeously, the court can make certain orders, namely:- 1.An order for the payment of a capital sum of money to the applicant 2.An order requiring  the non-applicant to pay money in respect of any economic burden of caring (after the end of the cohabitation) for a child of the former cohabitants 3.Any interim order that the court considers appropriate.

When deciding whether to make any of the above, the court will look at whether (and the extent to which) one cohabitant has gained an economic advantage from contributions made by the applicant cohabitant. Further, it will look at whether (and the extent to which) the applicant cohabitant has suffered economic disadvantage in the interests of the other cohabitant, or a relevant child of the parties.