A comparison of cohabitation rights in England and Wales with Scotland

What happens on separation?

In both jurisdictions, people that live together but aren’t married have no right if they separate to claim maintenance for themselves from their partner.  Parents do have an ongoing obligation to financially support their children.

In E&W, there is no mechanism for the court to make an award of capital to a cohabitant on the breakdown of the relationship, except for the benefit of a child (under S1 Children Act 1989).  This means that one party could find themselves with no home or means to rent/buy one unless they can apply property law to prove that the sole legal owner of the former family home holds it on trust for their joint benefit.

However, in Scotland, the Family Law (Scotland) Act 2006 (“FLSA 2006”) does give limited further rights to cohabitants. FLSA 2006 defines cohabitants as couples living together “as husband and wife” or “as civil partners” but does not include a minimum period of cohabitation.

  • S28 FLSA 2006 allows cohabitants to apply for an award of capital from their ex-partner where they can prove they have suffered an “economic disadvantage”, or the other party has derived an “economic advantage”, from contributions made by them or in the interests of the other party or a child.  In other words, where one party has suspended their career to care for the couple’s children, their earning capacity may be reduced as a result – an irrelevance in E&W.  The court will carry out a balancing exercise and only if one party’s disadvantage is outweighed by the other’s advantage will an award be made. Applications must be made within one year of the relationship breakdown. 
     
  • S26 FLSA 2006 also deals with the sharing of some household goods (excluding money, securities, cars and pets) bought during the period of cohabitation.  There is no similar provision in E&W and it is often a contentious issue.   Absent any agreement or contrary evidence, the law presumes the parties own the goods jointly and must share them or their value equally.

And on death?

In E&W, any property held jointly as “joint tenants” passes automatically on death to the other co-owner, outside the deceased’s will.  If a party wishes to leave their share in joint property by will, it must be held as “tenants in common”.

The same applies in Scotland, save that a survivorship clause is required for jointly owned property to pass by survivorship; without such a clause, it is assumed that the property is held in particular shares which can pass by will.

Cohabitants in both Scotland and E&W have no automatic rights of succession if their partner dies without having made a will. However, in both jurisdictions, legislation allows applications for financial provision against the deceased’s estate. 

In E&W, such applications are for reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975, provided the applicant was being maintained by the deceased at that time.  The time limit is six months from the date of grant of letters of administration, although this can be extended by the court in exceptional circumstances. 

In Scotland, this is another issue dealt with by FLSA 2006.  S29 enables cohabitants to apply for a capital payment or transfer of particular property from the deceased’s estate provided the application is made within 6 months of the date of death (not extendable).

Protective steps

Despite the extra provision in Scotland, couples choosing to move in together are well-advised to take the same precautions to protect their position as their peers in E&W:

  • Enter into a cohabitation agreement.  This is a contract and in most cases should be enforceable as such.
     
  • Make a will.

The future in England & Wales

The Cohabitation Rights Bill is slowly making its way through the House of Lords.  As drafted, it applies to cohabitants with a minor child or who have cohabited for three years. It goes further than FLSA 2006 in providing for a range of financial settlement orders (including property transfer/sale and pension sharing but not maintenance) and extending the intestacy rules to include qualifying cohabitants. It remains to be seen whether the Bill will become law.