INSIGHT Magazine - Issue 4

Cohabitation
For better or for worse
Cohabitation is on the increase, but you may be surprised to discover
that that this is still a very poorly legislated area of the law. The idea
behind the current law within the Family Law Scotland Act 2006 was
to avoid an oversight of sacrifices made by cohabitants that could not
be legally redressed. This however, had to be balanced against the right
of individuals who decide not to enter marriage and take on the legal
obligations and rights of this.
Are you a cohabitant?
Well you may be if you are a member of a couple which consists of a man
and a woman who are living together as if they were husband and wife or
two persons of the same sex who are living together as if they were civil
partners.
You might then think that this is all straightforward and would allow for
an easy determination as to whether you are cohabiting or not. However,
what else will the Sheriff consider?
• Have you lived together long enough?
From current case law there appears to be a suggestion that 7
months may be too short and that one year is likely to be more
sufficient. Again, this is not set in stone and leaves us with no
definitive answer on the matter.
• The amount and nature of time spent together?
• Do you live in the same home?
• Do you have a social life together?
If you do have the same social circle and tend to go on holidays
together then it is likely that you will be cohabiting.
• How parties portray themselves to others can be a significant
factor. In one particular case the Pursuer wore a white gold band
on her wedding finger and this was enough to establish that they
were cohabitants.
• Quite an important factor would be the parties resources and how
they manged these. If you live together and share resources, it is
likely you cohabit. However, if you deal with your financial affairs
separately then you may be unlikely to establish cohabitation.
All this makes for an extremely grey area of law!
Added to this, once you separate you only have one year to make an
application to court if you cannot agree on matters. This may seem like
a considerable period of time but it’s not and you may find yourself
time barred, if you go over one year. One final drawback of this time
scale is that it puts a lot of undue pressure on the ability of parties to
negotiate out with court. Therefore, it is important if you are in this
situation that you contact your solicitor as a matter of urgency.
If you would like further information on the matter, then please do not
hesitate to contact us at our Kilmacolm office on 01505 874114.
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