When there’s a danger that love might damage the size of your bank balance

The law on cohabitation in Scotland is currently under lengthy review process, writes

Whether motivated by never knowing where your toothbrush is, a desire to mitigate the rising cost of living by sharing bills, or for rather more romantic reasons, many couples every year choose to take the plunge and move in together.

For some, this is a way to "test the waters” prior to formalising their relationship by marrying or entering into a civil partnership. For others, cohabitation is a positive commitment and long-term arrangement.

But if there is a danger that love might damage the size of your bank balance, then it's a good time to get a lawyer involved. What you might already know is that in Scotland, we are ahead of many jurisdictions in providing cohabitants the right to seek financial awards from their former partner in the event of relationship breakdown.

What you might not know is that the law on cohabitation in Scotland is currently being reviewed. On November 2, The Scottish Law Commission published its Report on Cohabitation. The report considers how the existing law governing the rights of cohabitants on separation might be amended and follows a lengthy consultation process with solicitors, academics, members of the public and decision-makers.

The recommendations made by the commission include a revisal of the definition of “cohabitant” (which currently makes reference to parties living together as if they were married or in a civil partnership) and how a court might assess whether parties are indeed cohabiting. Being involved in an “enduring relationship” is the new recommended key test, with all

circumstances of the parties' relationship being taken into account.

There is specific reference to fairness. It is recommended that “fair” account should be taken of any economic advantages gained, or disadvantages suffered, by either cohabitant during the relationship; and "fair" sharing of the economic burden of childcare.

There is provision for relief should either party otherwise be likely to suffer serious financial hardship following the relationship breakdown and the introduction of a greater range of remedies than those currently available as part of a cohabitation claim (currently restricted to payments of money).

Property transfer orders( for examplea house being transferred from one party to the other); payments for short term relief from serious financial hard ship( up to a maximum of six months ); orders for valuation and sale of property and regulation of who occupies the family home and for payments relating to the home are also included.

There is also discretion for courts to allow late claims on “special cause shown” (currently claims are subject to a strict one-year time limit from the date of the parties' separation and the ability for parties to be able to extend the time limit for claims by agreement. There is also provision specifying what should happen where parties have entered into formal written agreements prior to, or during, their cohabitation.

The report has been presented to the Scottish Parliament. It is expected the scottish government will now carry out its own consultation and take forward the proposed draft Bill.

Susie Mountain is a Partner and Solicitor Advocate, Brodies LLP