Society calls for reform of "problematic" cohabitation law

Scotland's laws on cohabitation are problematic and disadvantageous to vulnerable and grieving people, according to a report by the Law Society of Scotland published today.

Rights of Cohabitants reflects issues identified by Scottish solicitors and calls for a full review of the Family Law (Scotland) Act 2006 as respects cohabitants.

The Act allows cohabitants to make financial claims against each other following separation, or for the surviving cohabitant to make a claim from the estate of a deceased partner – but only if the deceased has not left a will. 

In the former case, the Act stipulates that cohabitants have a period of one year to make an application to the court, and when a cohabitant dies, the surviving cohabitant has just six months from the date of death to make an application. According to earlier research, 76% of solicitors think time limits are a problematic area of the Act.

John Kerrigan, a member of the Society’s Trusts & Succession Law Subcommittee, said: “We have called for an amendment allowing the court to accept a claim made after the one-year time limit. There are many reasons why a court action may not be raised within one year of separation. Cohabitants may not be aware of their rights, or one or both parties may be suffering from the emotional effects of the relationship breakdown.

“There is also the potential for vulnerable individuals to be placed at a disadvantage as a result of the limited time frame for lodging a claim. For example, an abused partner may be reluctant to pursue a claim shortly after the breakdown of the relationship for fear of repercussions.”

The Society has also proposed linking the time limit for a claim following the death of a cohabitant to the grant of confirmation. Mr Kerrigan explained: “Currently a claim must be made to the court within six months of the date of the death of the cohabitant, and there is no discretion for the court to accept an application after this period, during which an individual is likely to be grieving and struggling to deal with practical matters following the death of a partner.

“We have suggested an extension of the period to up to 12 months from the date of death, or, in a case where confirmation is obtained in respect of the deceased’s estate after the expiry of 12 months from death, up to six months from the date of confirmation. Under either circumstance, it should also be open to the court to allow the late lodging of an application.”

The Law Society has called for a wider review of the provisions of ss 25-29A of the 2006 Act, and has highlighted a number of other issues relating to the law on cohabitation including whether a claim based on the common law of unjustified enrichment should be allowed, and whether claims on death should be allowed where there is a will (opposed by a majority of respondents to the Society who gave a view). 

Click here to read the full report, and here for an executive summary.

• Last week the Scottish Law Commission announced that it had completed the scoping exercise for its own review of the law of cohabitation. Click here for news report.