A cohabiting couple, by definition in Scot’s law is “living together as if man and wife”. To ordinary citizens, the relationship can be likened to marriage, but the Scottish family law says otherwise.
Both relationships are treated differently, and only married couples has the benefit of legal certainty. This is why anyone entering a new cohabitation relationship is advised to put a pre-cohabitation agreement and a will. Although people getting married are given the same advice, especially on pre-nuptial agreement, married couples have something legally solid to hold on to.
As a result of the Family Law (Scotland) Act 1985, the law on divorce is codified and fairly settled. During divorce proceedings, a spouse will know what is expected of them, and what assets they will be entitled to share. With a pre-nuptial agreement in place, parties gain even more certainty.
But a former cohabitant does not get the same legal assurances. They do not receive anything automatically after separation. They don’t have an automatic right to occupy the same property they shared with a former partner. They don’t have the option to transfer a property from joint names into the sole name of one party. They don’t have a legal duty to financially support a former cohabitant.
Upon the death of a cohabitant partner with no will left behind, the surviving partner can make a claim on the estate, but what they will receive will never be as much as what a spouse would receive even if their wife or husband died without leaving a will.
A cohabitant unaccustomed to the Scottish divorce law is potentially walking into a minefield when starting separation proceedings. Without the right information from family law experts, they could be robbed of the right settlement they are entitled to.
With a will and pre-cohabitation agreement, however, they might be able to protect themselves and their interests to a certain extent. Call it unfair, but that’s the family law in Scotland.
