Cohabitation - Plans to introduce Legislation in England and Wales put on hold
It has been announced by Bridget Prentice, the Justice Minister for England and Wales that plans to give 2 million cohabiting partners in that jurisdiction similar rights to those held by cohabitants in Scotland have been shelved.
Cohabitation in Scotland - the background
There had been a long held but mistaken belief amongst the Scottish public that a couple established a "common law marriage" if they lived together for a period of time. Following a substantial increase in the number of unmarried couples who had chosen to cohabit, the Scottish Parliament introduced legislative change by virtue of the Family Law (Scotland) Act 2006 ("The 2006 Act") which came into force in Scotland on 4 May 2006. Whilst the 2006 Act did not legitimise the notion of "common law marriage" it introduced in Scotland certain rights and obligations between cohabiting couples of opposite sex and of the same sex. A cohabitant is defined in the legislation as either member of a couple living together "as if they were husband and wife" or "as if they were civil partners". The section of the 2006 Act dealing with cohabitants' rights was introduced into Scots law with little media coverage. Whilst the 2006 Act did not give cohabiting couples in Scotland the same rights as married couples or civil partners, it did create important legal rights and obligations. There is no minimum period of cohabitation prescribed by the 2006 Act for the acquisition of rights under it. The consequences of the legislation for cohabiting couples still appear to be a surprise to many members of the public and also to those within the legal profession not practising in the area of family law.
The 2006 Act in practice in Scotland
Guidance is still awaited from the Scottish Courts regarding interpretation of the legislation. The 2006 Act imposed very strict time limits with regard to commencement of claims for financial provision following cessation of cohabitation or following the death of an intestate cohabitee. Such claims must be brought before the courts within one year of the date on which the cohabitants ceased to live together or within six months of the date of death of the cohabitee. There is no provision for those time limits to be extended by the court.
Simpson & Marwick has advised numerous cohabitants and prospective cohabitants with regard to their rights and obligations subsequent to the introduction of the 2006 Act in Scotland. In particular Simpson & Marwick has advised prospective cohabitants of the measures available to them to protect personal assets from any claim that may subsequently arise from their cohabitation and the subsequent breakdown in that relationship.