Dealing with claims by cohabitants on death – rights are not the same as for married couples in Scots law

Before the Family Law (Scotland) Act 2006 came in to force, it was in some circumstances possible to argue that a couple had been married by cohabitation and repute, commonly referred to as “common law marriage”.

By establishing marriage by that means, partners could access property and inheritance rights, just as if they had been married. Recognising that demographics were changing and that more couples were choosing to live together without marrying, the Scottish Parliament introduced a framework of rights for cohabitees.

Those rights do not, however, place cohabitants on the same footing as married couples. Section 29 of the 2006 Act relates to claims by a cohabitant on the death of their cohabitee. This particular part of the legislation has given rise to legally complex and emotionally difficult cases. Claims made under this section of the Act are unpredictable and impossible to quantify in terms of value, since the legislation gives the Court absolute discretion without setting out clear guidelines about the validity of value of a claim. This uncertainty and the potential cost of taking a claim to court has meant that there have been few decided cases in this area.

Second significant relationships without divorce

Many of the contentious cases I am aware of have arisen where a cohabitant has passed away while still married to their spouse, giving rise to competing inheritance claims between a former spouse and a current cohabitant. To avoid this risk, it is important to pursue divorce at the appropriate time following resolution of financial and child related aspects arising from separation. Second significant relationships are common. It is important that you are not in a vulnerable position should you remain married but cohabiting with your new partner, or if your new partner remains married to his or her previous partner.

Key points for making a claim

The specific provisions contained within the legislation are many and complex, but there are a few key points to bear in mind. A claim can only be made where the deceased has died without leaving a will. Any claim upon the death of a cohabitant has to be made within six months of the date of death. That time limit is strictly applied and may seem rather harsh given that the partner left behind requires legal advice and to give instructions whilst going through the grieving process. Timeous, sensitive advice is necessary.
A surviving cohabitant cannot receive more than a spouse would. Expert advice is necessary in order to calculate the maximum value of a claim and the likely prospects of success. Family lawyers can work effectively with their private client colleagues to tender definitive advice in this situation.

A case in point

A recent case illustrates these points well. The partner of a deceased cohabitant sought advice approximately three months following the death of her partner. There was no Will, although the deceased had actually made an appointment with a solicitor to make a Will. Tragically, he died before he was able to meet with his solicitor to have a Will drawn up. The couple had lived together for nearly 20 years. There was no doubt that they had lived together as if they had been husband and wife, and in fact many of their friends and colleagues had assumed that they were married.

The deceased had two sisters, one of whom was content that her brother’s partner inherit his estate. The other sister sought to enforce her legal rights to inherit part of the estate. A court action required to be raised almost immediately to ensure that the deceased’s partner’s claim did not expire.

A calculation was made as to what a spouse would have been entitled to. The deceased’s partner invited the Court to make an award at that level having regard to the nature and duration of the relationship. As often happens in litigation, the case was eventually settled, with approximately two thirds of the value of the estate going to the deceased’s partner. One of the most poignant aspects of the case was that a great deal of heartache and cost could have been saved had the deceased had time to prepare a Will.

Seeking early advice

The moral of this cautionary tale is that it is never too early to prepare a Will, nor to seek family law advice about your personal circumstances in the event of cohabitation.

Get in touch

If you would like to speak with a solicitor who understands your situation, please do not hesitate to contact a member of the Family Law team on 0141 221 8888.