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Hamilton Ross
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Serving Clients in Lanarkshire for over 15 Years.

Cohabitation in Scotland and your rights

The fastest growing family type in the UK is the cohabitating couple, yet so many people remain unaware of their rights when their relationship breaks down.

Cohabitation in Scotland is defined as a man and a woman who live together as if they are husband and wife or members of a same sex couple who live together as if they are civil partners. In marriage financial rights are relatively well known but limited knowledge exists when considering the rights of cohabitants. While it is not the first thought of individuals in a relationship when moving in together, financial claims can be made against one another when the relationship ends.

The Family Law (Scotland) Act 2006 has made it possible for cohabitants to make financial claims against each other on the ending of their relationship. This can only be done where it is possible to prove that an economic disadvantage has occurred as a result of the relationship or the when the other person in the relationship has been economically advantaged because of the relationship. The scope for this can be wide and currently the courts, in relation to any award being made, take a ‘broad-brush’ approach.

Legal routes exist to protect from financial claims. For example, cohabitation agreements, if sufficiently drafted, can protect parties in the unfortunate event of the relationship coming to an end. This can be particularly important in relation to what happens to the cohabiting property. The aim of these agreements is to provide financial security and certainty in the hopefully unlikely event of a future separation. It is common in these agreements to protect individual assets that were owned before the start of the relationship. It is important to note that these agreements have not been fully tested in the Scottish courts, emphasising the need for competent legal counsel and drafting.

Cohabitation agreements are an agreement between both parties. Agreement might not always be possible. The rise of this type of relationship is a trend the courts can no longer ignore and are changing to reflect this. The law now affords protections to those who have suffered economically as a result of a cohabiting relationship. If you wish further information on cohabitation and of your rights/ position when involved in this type of relationship please contact our family law team.

This blog was written by Kris Jenkins, LLB (Hons), currently studying the Diploma in Professional Legal Practice

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