How do I protect my interests if my partner and I plan to live together?
Nowadays, the number of couples choosing to live together, is growing faster than the number who choose to marry, according to the Office for National Statistics.
Yve Maclean, an Inverness-based family lawyer at Brodies, answers some common questions about how couples living together can protect their interests and property.
What is a "cohabiting couple"?
A cohabiting couple is a couple who are living together as if they were husband and wife, or a same sex couple living together as if they were civil partners.
In Scotland, there is no such thing as a "common law marriage" or "common law husband or wife". It is a common misconception that cohabiting couples who live together for a certain period, acquire the same rights as a married couple.
What rights does a cohabitant have on separation?
Cohabitation is not treated by the law in the same way as a marriage. When a cohabiting couple separate, a different set of legal principles apply.
Those principles come under the Family Law (Scotland) Act 2006 and are currently under review.
A cohabitant can make a financial claim following the breakdown of their relationship if they can show that they suffered an economic disadvantage as a result of the relationship in the interests of their former partner (or a child), or that their partner enjoyed an economic advantage.
The level of financial award that the court may (or may not) make in favour of a cohabitant varies widely and from case to case.
Is there a time limit for making a claim?
Yes. If you and your partner separate, and agreement can't be reached on financial matters, you must raise a court action in order to make a claim – and you must do so within one year from the date of separation. If you don't adhere to this timescale, your ability to make a claim is lost.
What is a cohabitation agreement and who is it suitable for?
A cohabitation agreement allows for the protection of assets. It sets out the terms of the cohabitation and protects the respective interests of the individuals who are intending to live together. It is tailored to each relationship and can be very flexible in what it includes.
A cohabitation agreement suits a variety of situations. For example, a couple buying their first home together can use it to ringfence their respective contributions to the deposit, or protect funds given by family members. An agreement can also set out arrangements for regulating the financial contributions of either party to the household expenditure from their income or savings.
Another common scenario is a couple who have been married or in a previous relationship and have various assets they wish to protect from a cohabitant claim, should they separate.
For example, they might wish to regulate arrangements in a situation where their partner is going to be moving into a home they have owned before the relationship in their sole name. They may also want to ringfence certain assets from a cohabitant claim to protect these for any children they may have had from a previous relationship.
How do you put a cohabitation agreement in place?
I would recommend putting a cohabitation agreement in place before living together, as it creates certainty about how finances will be dealt with if there is a relationship breakdown. It also avoids the need for lengthy, costly and unpredictable court proceedings.
Usually, one cohabitant will instruct the services of a family lawyer, but note that the same lawyer cannot act for both cohabitants. A draft agreement is usually prepared and sent to the other cohabitant, advising that they should take their own separate legal advice before signing the agreement.
Finally, it is worth instructing a good family lawyer to prepare a cohabitation agreement – a poorly drafted agreement could be challenged by the court if there is a future separation.
Yve Maclean is a senior solicitor in family law at Brodies LLP, based in Inverness.
