A recent report by The Law Society of Scotland has highlighted the laws surrounding cohabitation as both ‘problematic and disadvantageous to vulnerable and grieving people’.
The project looks at cohabitants’ rights under section 28 (financial provision where cohabitation ends otherwise than death) and section 29 (application to court by a survivor for provision on intestacy) of the Family Law (Scotland) Act 2006 and how the laws can be improved.
Under current cohabitation laws, a cohabitant who has lost their partner can only make an application to the court to inherit from their partner’s estate where no Will has been left. Furthermore, where a cohabiting couple separates, section 28 of the Act stipulates the cohabitant has only one year to make an application to the court from the day on which the cohabitants cease to cohabit. However, the report noted that 60 per cent of solicitors felt ‘establishing the date of separation’ was a problematic area of the Act. Under section 29, when a cohabitant dies, the surviving cohabitant must make an application within six months of the date of death. According to the paper, this time frame ‘gives rise to fundamental problems in certain intestate situations.’
Once the six-month limit has passed, the court is under no obligation to accept an application. Member of the Law Society of Scotland’s Trusts and Succession Law Sub-Committee, John Kerrigan, believes this time limit is unfair as “an individual is likely to be grieving and struggling to deal with practical matters following the death of a partner.”
Published last month, the report entitled Rights of Cohabitants, said it was ‘interesting’ that other areas are afforded more time to raise an action; with personal injury actions given three years, and negligence actions allowed five years.
As well as those grieving, Mr Kerrigan looked at vulnerable individuals who can be at a disadvantage with the unreasonable time limits. He explained that those partners who are abused “may be reluctant to pursue a claim shortly after the breakdown of the relationship for fear of repercussions.”
The Law Society has suggested an extension period of up to one year from the date of the cohabitants’ death. If the confirmation is obtained for the deceased’s estate after the 12 months from death, the Law Society proposes up to six months from the confirmation date. Either circumstance should be “open to the court to allow the late lodging of an application” the report confirms.
Over the 20-year period to 2017, cohabitating couple families were the fastest growing family type in the UK, with the number jumping from 1.474 million to 3.291 million cohabitating families in 2017; a rise of 123 per cent.
Mr Kerrigan concluded:
“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.”
While the report focuses on section 28 and 29 of the 2006 Act, the Law Society has urged a more extensive review of the provisions of section 25-29A is carried out.
If you are looking for qualified legal advice about the laws surrounding cohabitation in Scotland, get in touch with our specialist family law solicitors today via the online enquiry form.