Never before in Scotland have there been as many co-habiting couples as there are today. Around 22% of couples in the United Kingdom are now cohabiting, rather than married or in a civil partnership. With Scotland alone boasting 237,000 cohabiting families recorded in the 2011 Census, that figure is now likely far higher
So what is cohabitation? Currently, a co-habiting couple is a couple who live together as if they were married or in a civil partnership, but are not. Now, that situation is one many of my friends and family members have found themselves in, for a whole plethora of reasons. Perhaps, it is something you recognise too? Maybe, it is even the situation you find yourself in now?
Well, you are not alone. Whilst a somewhat ‘special case’ in the eyes of the law, we recognise the increasingly common nature of cohabiting couples and want to provide clarity in what can become a complex situation. If, unfortunately, the worst should happen and a partner in a co-habiting couple were too pass away. The waters surrounding the surviving partners rights are murky and filled with potential traps.
The survivor of a co-habiting couples rights are not fixed. There is no automatic entitlement, as things currently stand. If the partner who has died has left no will and their estate, is what we call ‘intestate’, then we are left with only one course of action. Under the Family Law (Scotland) Act 2006, a provision is given through s.29 that allows for survivors of cohabiting couples to apply for an award from the courts. But beware, this application must be made within six months of the date of the deceased’s passing. Failure to do so will leave you, as the survivor without remedy.
Unfortunately, even with a successful application, recent cases have shown that the courts have not been generous to the surviving partners. The judges presiding over such cases, have complained that the legislation itself lacks clarity and clearer indications were needed. Cleary, this is a problem for the Scottish legal world but don’t let the law’s problem become yours.
We can offer a solution, tailored to your situation and your life. The real issue is that many fall at the first hurdle. A lack of a Will. Creating a formally valid and legally enforceable Will means that you have the freedom to choose who will inherit in your estate, including a co-habiting partner. A Will ensures that you and your partner will not fall foul of the challenges that may otherwise face your estate.