When The Family Law Scotland Act 2006 came into force it abolished the ability for couples to begin to establish marriage by way of cohabitation with habit and repute. Despite that being some 14 years ago I still, every so often, come across someone who believes that they have a “common law marriage.”
A common law marriage, in its day, would give non-married couples (cohabitants) rights to inherit in the event of death, the same as a spouse. In its stead, s.29 of the 2006 Act introduced rights for cohabitants on death recognising the importance of couples choosing to live and build a life together.
At the discretion of the court
That being said, s.29 does not in any way place cohabitants on the same footing as couples who are married. A cohabitant should not receive more than a spouse would. It does not follow however that a cohabitant will then receive exactly what a spouse would. It is important to note that there is an upper limit to what the court can order but no lower limit. Indeed there are cases where no award has been made at all. The right of a spouse to inherit is a legal entitlement but payment to a cohabitant is at the discretion of the court.
A difficulty for cohabitation claims on death
One area where cohabitant claims can be very difficult is where the deceased was still married, although separated from their spouse. There is no legal status of “separated” in Scotland and therefore until such times as you are divorced you are still married. To give some protection to new partners, it is therefore important that a full Separation Agreement is entered into and a divorce pursued in good time.
Quantification of a claim under s.29 is difficult. The 2006 Act gives the court a great deal of discretion and that, coupled with the cost of a court action means that there are very few reported decisions to take guidance from. Expert advice is necessary to calculate both prospects of success as well as quantification of any claim.
The timescale to raise an action under s.29 is just 6 months from the date of death. That is a hugely tight timescale for anyone least of all someone who is grieving. The court currently has no discretion to allow claims in out of time. Early advice is therefore essential.
It is also important to note that a claim can only be raised under s.29 if the deceased died intestate – without a Will. Where there is a Will then the Estate will be divided according to its terms and any surviving cohabitant cannot claim in the estate. It is, therefore, more straightforward and more cost-effective to ensure that you have an up to date Will in place outlining your wishes in the event of your death.
Saving stress, expense and time
The best advice is to ensure that you have a Will and that it is accurate and up to date. That will save stress, expense and time. It is also never too early to seek advice from a specialist family lawyer about your relationship.
The Scottish Law Commission is currently reviewing cohabitation law in Scotland and it is highly likely that cohabitation claims on death will change. Hopefully, that will bring more clarity and certainty for cohabiting couples. For now, however, the 2006 Act will continue to apply.