The current law on cohabitation in Scotland and England and proposed reforms to the law both sides of the border

The current law

As we highlighted in a previous insight, England has no specific statutory provision for cohabiting couples. The scope of the law is therefore very limited. If there are property disputes, there are limited trust and land law solutions (although these are not directly for cohabitants). If there are claims relating to children, a parent could potentially make an application for a child under Schedule 1 of the Children Act 1989.

By contrast, the law in Scotland currently has specific legislation in place for cohabitants contained in Section 26 – 29 of the Family Law (Scotland) Act 2006.

The Act allows for cohabitants to make a claim against each other for household goods, for money and property (excluding any house they cohabited together) and to seek a capital sum in circumstances where one party can demonstrate that they have made contributions during the cohabitation in the interests of the other party, or where there is a child of the relationship, resulting in that party gaining an economic advantage to their corresponding disadvantage.

In addition, a cohabitant can make a claim on their cohabitant’s estate, within six months of their death.

Proposed reform both sides of the border

Whilst Scotland and England both have vastly different laws in relation to the current rights of cohabitants, what both countries have in common is that they are seeking to reform the law that they currently have.

In England, the House of Commons Women and Equalities Committee published a report on 4 August 2022 seeking a drastic reform of the law on cohabitation law in England, as they consider that married couples currently have far better rights and legal protection than cohabitants do. 

The Scottish Law Commission Aspects of Family Law Project has been reviewing the law in Scotland since 2018. The outcome of that review is patiently awaited. There has been a suggestion that the Commission’s report and any recommendations for a draft Bill will be published shortly.

We will update you about the position once the Commission’s report is published.

Likely recommendations in Scotland

Without having a crystal ball, in the meantime, we can only comment on what we think that report may recommend, given what we know currently causes concerns for both for cohabitants and for family lawyers advising cohabiting couples.

On the back of the review and the report being published we consider that there may be recommendations for the following:

The definition of a “cohabitant” be reviewed

Currently a cohabitant is defined as “a man and woman who are (or were) living together as husband and wife” or “two persons of the same sex who are (or were) living together as civil partners”. It would not surprise us if there may be a call for a different definition of “cohabitant” that is not just the same as spouses or civil partners given the modern world that we all live in.

The issue of time bar be reviewed

Cohabitants currently have one year from the cessation of cohabitation to “make an application” against their ex-partner. We consider that there may be a recommendation that this time limit be extended or removed all together, given that no such limit exists for spouses or civil partners who separate.

There is already a debate about what constitutes making “an application”. Most legal professionals consider that means raising a court action, having that action warranted and successfully served upon your ex-partner within one year of stopping cohabiting. Alternatively, some have tried to suggest (unsuccessfully thus far) that intimating a claim upon your ex-partner constitutes raising a claim.

A recent currently unreported decision Knight v Henderson 2022 SAC 4 August 2022 (PER-F23-20) involved the Appeal court reversing a Sheriff’s decision and upholding an appeal on the basis that an application is made when an Initial Writ is served timeously. This remains the binding position in the Sheriff courts for now.

Whether the law should include the option to seek transfer of property from one cohabitee to the other

The law as it stands does not allow for cohabitants who jointly own a heritable property to seek transfer of title of that property from joint names into their sole name upon separation.

Instead, the options are for one cohabitant to either make a financial claim (if they have a section 28 claim) or to raise an action for division and sale of the property (a common law remedy available to all joint owners where a property is not capable of division).

Whether there should be the option for cohabitants to seek aliment (financial support) from each other upon separation

Unlike married couples or civil partners, cohabitants cannot seek aliment from the other once they separate. We anticipate that unfortunately this may remain the case for the foreseeable future.

How to calculate any claims

There is currently no provision on how to calculate financial claims for cohabitants, in the same way that there is for separating spouses or civil partners. There is reference in the case law to “fairness” and to a “rough and ready approach”. Perhaps this will be made more specific and clearer for cohabitants going forward. Will the review also recommend that parties’ resources be taken into account upon separation, as is the case for spouses and civil partners?

What now for Scotland?

Whilst clarity on the current law and any proposed potential changes to the law may be welcome now, unfortunately, the reality is that it could take a few years for the Scottish Government to consult on matters, to issue a draft Bill and to amend our current law (if that is what they choose to do).

In the meantime, our Scottish team of experienced family lawyers can continue to advise our clients about the current law; on the up-to-date case law coming out about cases involving cohabitants’ claims; on how to pursue or to defend cohabitation claims and about how we can help protect your interests by advising you and about and preparing cohabitation agreements to try and ring-fence any assets that you have before living together, and to prepare for the worst, rather than just hoping for the best. Our colleagues in our English offices can also offer expert advice in England.