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Cohabitation Rights Post Separation

Cohabitation Rights Post Separation

Cohabitation law including cohabitation rights, came into force in 2006 through the Family Law (Scotland) Act 2006 (the Act). The Act contains provisions for dealing with financial issues when an unmarried couple separate. Cohabitation is a less formal relationship than marriage and the legal rights available to each person when they separate are not nearly as extensive as if they divorced.

There are a number of common myths amongst cohabiting couples:

  • We are common law husband and wife
  • Cohabitation rights are the same as married couple's rights
  • My partner has always been fair so I doubt he would change
  • My partner wouldn't claim anything from me when we split up

The first two statements are untrue and the last two statements are hopeful!

Supreme Court decision  Gow v Grant

Until 4 July 2012 the legal rights of cohabitants following separation were unclear. The Supreme Court decision in Gow v Grant [2012] UKSC 29 has cleared up many uncertainties. The decision states that the financial position of the parties at the start and end of the relationship needs to be determined. This will help establish whether either party has suffered an economic advantage or disadvantage in the interests of the other from contributions (financial and non-financial) made during the relationship. An exercise needs to be carried out to balance the respective positions of each party.? Essentially it is an exercise which should be governed by fairness.

Cohabitation rights are very different from married couples' rights in that there is no equivalent concept of matrimonial property and debts. When dealing with a cohabiting couple each party retains their own property and debts. If one party has suffered an economic disadvantage then they must apply to the appropriate Court for a capital sum; or payment of a sum in respect of the burden of caring for any children of the relationship. The Court can also make any other order as it sees fit. Any claim resulting from the breakdown of a cohabiting relationship must be raised in the relevant court within 12 months following the date of separation.

We have experienced family lawyers in Glasgow and Edinburgh.

Get in touch if you'd like to discuss cohabitation rights in more detail.

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Written by : TC Young