Cohabitation – Don’t Take Things For Granted

The Office for National Statistics recently published figures relating to the make-up of families across the UK. It highlighted that the number of cohabiting couple families has grown considerably in recent years. The figures from the ONS show that cohabiting couple families grew by 29.7% between 2005 and 2015, to a total of 3.2 million, and that cohabiting couple families now account for 17% of all families in the UK. Cohabiting couple families are defined as those with or without children where the couple are not married but live together as if they were husband and wife or civil partners. By comparison to married couple or those in a civil partnership the law offers them very limited protection should the relationship break down.
Currently in Scotland the Family Law (Scotland) Act 2006 provides limited financial provision for cohabitants whose relationships end. Section 28 of the Act provides that a cohabitant can apply to the court within one year of the end of the relationship and the court may order a capital sum to be paid by one cohabitant to the other. The court will consider whether either of the cohabitants has gained or suffered economically in favour of or to the detriment of their former partner as a result of any contributions made by the other cohabitant. This can be either financial or non-financial like bringing up children. Section 29 of the Act enables a surviving cohabitant to make a claim on the estate of a deceased cohabitant where there is no will.
An individual who moves in with their partner is unlikely to consider that a financial claim could be made by them, or against them, in the future. For cohabiting couples there is no legal obligation to pay maintenance to each other if they separate, and there is no provision for the making of a transfer of property order so the Court could not have the house transferred to one party. It is presumed that each cohabitant will share equally in household goods acquired (except by gift or inheritance from a third party) during the cohabiting relationship. There is no provision or assumption of equal shares regarding the property bought for the cohabitants to live in. This means that couples if buying a property jointly have to consider how title to any property is taken, if one of the cohabitant’s is putting in more by way of a deposit it is advisable to have this set out in writing. There has been in recent years an increase in couples considering a cohabitation agreement for this reason. A cohabitation agreement can set out the financial arrangements which are to exist during the couple’s relationship, and set out what will happen in relation to finances in the event that the relationship breaks down even if that is just to provide that neither cohabitant can make a claim upon the other. Couples who are entering into a cohabiting relationship may also want to consider making a will.

Author: Hannah Blaney, LLB Hons, Currently studying for the Diploma in legal Practice

The views expressed are those of the author and do not necessarily reflect the views of the firm.

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