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Government Publishes Scrutiny of Cohabitants’ Rights

Last month the Scottish Government announced a post-legislative review of the Family Law (Scotland) Act 2006.

This Act governs many aspects of Scots family law and had introduced rights and protections for unmarried people who live together. However, the cohabitants’ rights set out in the Act are generally considered to be unclear and can leave a separating couple uncertain of what they are entitled to.

The review was led by the Justice Committee Convener, Christine Grahame and considered evidence from a wide range of interested parties. Legal professionals were consulted about how the laws work in practice and evidence was submitted by organisations such as Families Need Fathers.

On cohabitation rights, Christine Grahame commented, “Stakeholders welcome the new rights for cohabitants enshrined in the 2006 Act. They have helped family law in Scotland adapt to modern times.

“However, we heard concerns that the legislation is insufficiently clear and that lawyers sometimes struggle to tell separating couples what they can actually expect from the provisions.

“More generally, we have heard of confusion from the general public about the state of the law on adult relationships – cohabitation, marriage and civil partnerships, which have changed significantly in recent years. It has been argued that changes have been piecemeal to the extent that the law now lacks coherency and purpose.”

Ms Grahame accepted that a more extensive review of family law might be necessary.

Cohabitation Agreements

Although the Family Law (Scotland) Act 2006 intended to introduce protections for people who live together unmarried, the law is unclear on what couples will be entitled to if their relationship breaks down.

The Act makes it possible for separating cohabitants to make a financial claim against their former partner. Claims can also be made to cover the costs of bringing up the children of the couple.

The Act also introduced the ability for cohabitants to make a claim upon their deceased partner’s estate. Although cohabitants could be awarded as much as a spouse would be entitled to, in most cases, it is unclear how much they would receive. These rules only apply to cohabitants who die intestate (without a valid will in place).

The best way for cohabitants to protect themselves is to get a cohabitation agreement. This is an agreement that sets out what would happen if they separate in the future. Cohabitation agreements routinely cover matters such as finances and childcare, but can include anything that is important to the couple.

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Contact us today to discuss cohabitation agreements. You can get in touch by completing our enquiry form.

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