Do you know your rights if your relationship breaks down? With Harper Macleod
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Natalie Bruce is a senior solicitor in Harper Macleod’s family law team in Inverness
As we near the end of 2022, we’ll soon be taking down the tinsel and making plans for 2023.
It is an unfortunate reality that we see more relationships break down at the start of a year so it’s worth us examining what rights unmarried couples have in the event of a breakdown, and the proposed law changes.
Nowadays, many couples cohabit without marrying, even though they may buy a property, have children or start a business together. However, few people are aware of their rights if they decide to separate, and to what they may be entitled.
A cohabiting couple’s rights are distinct from those who are married, and are set out in the Family Law (Scotland) Act 2006 (“the 2006 Act”). A cohabiting couple is defined as a couple who live together as if they are husband and wife, or as civil partners. The 2006 Act allows cohabitants to apply to the court for a financial sum in certain circumstances. The claim must be made within one year of the date of separation.
Claims can be made where one cohabitant believes he or she has been economically disadvantaged by the relationship and can also show the other cohabitant has been economically advantaged as a result of the first cohabitant’s contributions. Contributions may not necessarily be financial. For example, if one person gives up their career and stays at home to look after the family, leaving the other person able to build up a successful business, this could give rise to a potential claim. Court awards can also be made where there may be an economic burden for caring for a child or children of the relationship post-separation.
However, the legislation is complex, and it is difficult to predict an outcome given cases generally depend on their individual circumstances. Therefore, if you are unmarried and considering separating, early legal advice is essential, particularly given the strict one-year time limit currently in place for making any claims.
The Scottish Law Commission recently published a report on the 2006 Act and how the legislation can be improved. The Scottish Government will now consider the proposals, and will likely be subject to a period of consultation. The main proposals relate to allowing couples to seek a transfer of a jointly-owned property on separation (rather than just seeking a capital sum and thus the property having to be sold, which is currently the case), and the possibility of extending the one-year time limit for raising claims, by agreement between solicitors. It is also proposed the court have the power to order payments to one cohabitant to address any financial hardship, to be paid over a period of up to six months.
One way of avoiding unwanted claims is to enter into a cohabitation agreement. Although this may seem clinical, it can avoid unnecessary distress and uncertainty. The purpose of a cohabitation agreement is to narrate what should happen in the, hopefully unlikely, event that the couple decides to separate. If a couple purchases a property and each put in different amounts of money, the agreement can narrate that they should each get their amounts back should the relationship break down and the property sold. The agreement could also specify and record what each person should contribute to any household expenditure. Therefore if a couple separate, the agreement would be implemented (ie property sold and proceeds divided as per the agreement) and there would be no need for any claims to be made under the legislation.
All situations are different and a family solicitor can discuss this with you so you can make a well-informed decision based on your circumstances.
