The big differences between divorce and separation in Scots law

Whilst some people may have losing weight or stopping smoking at the top of their New Year’s resolutions list, others may have separation on their mind given that January to March are said to be the months when couples are most likely to separate.

It is not hard to imagine why people may wish to delay taking such a big step until the festivities are over for the sake of children or the wider family. For others, spending more time with loved ones over Christmas and New Year may serve to emphasise that a relationship is as past its sell by date as the left over Christmas turkey.

The Office of National Statistics claims that cohabiting couples in the UK grew by 29.7% between 2004 and 2014 making them the fastest growing family type. Anyone unaccustomed with family law in Scotland might think that, this being 2016 and the modern family unit often far removed from the traditional married couple, your status wouldn’t greatly affect your rights and obligations on separation.

But while the definition of a cohabiting couple in Scot’s law is “living together as if man and wife”, that is really where the legal similarity ends given that the two relationship types are treated very differently in law. Only married couples have the benefit of legal certainty.

However, Scots law has a long tradition of allowing parties the freedom to contract with one another and anyone entering a new cohabitation relationship or marriage into 2016 would be well advised to put a Will, Pre-nuptial Agreement or Pre-cohabitation Agreement on their New Year’s To Do List alongside learning that new language or shifting some pounds.

It is also never too late for parties in established relationships to try and avoid future costs and uncertainties on separation with Post-Nuptial and Cohabitation Agreements between parties already living together on the rise.

Divorce vs separation – the crucial differences

In Scotland, the law on divorce is codified and fairly settled as a result of the Family Law (Scotland) Act 1985. In most cases a spouse will leave their initial meeting with their lawyer knowing what is expected of them and what assets they will be entitled to share in the value of when dividing the matrimonial property or the “fruits of the marriage”. With their respective solicitors, it is often possible for parties to identify and value the matrimonial assets either on an individual or joint basis before arriving at a negotiated settlement. Such a settlement can then be enshrined in a formal legal contract before the parties are formally divorced. Parties can gain even more certainty by entering into a Pre-Nuptial Agreement.

Unlike a spouse, a former cohabitant who has lived in their partner’s property for many years has no automatic right to continue to occupy that property. There is no legal duty to financially support a former cohabitant who may have been used to such support over a long period of time. If former cohabitants own their home jointly and one party wants or needs the property going forward, there is no remedy in Scots law to have the property transferred from joint names into the sole name of one party in the event of a dispute.

In short, as a former cohabitant, there is no automatic right to receive anything on a relationship coming to an end by way of separation. Instead, what the law provides for is the somewhat woolly right to make a claim for financial provision on cessation of cohabitation if a former cohabitant considers that they have been economically disadvantaged by the relationship to the other parties’ economic advantage.There is also provision for a former cohabitant being compensated by the other party if they will bear the “economic burden” of caring for any children of the relationship.

Advancing or indeed defending such claims as a former cohabitant is not an easy or cheap thing to do. This is particularly so in light of the strict one-year deadline from the date of separation for making such a claim which can often result in court actions being raised to prevent time bar.

The situation is equally unsatisfactory for cohabitants whose partner dies. If the deceased left no Will and the parties were still residing together as a couple at the date of death it is possible for the former cohabitant to make a claim on the estate but a former cohabitant will never receive as much from the estate as a spouse whose husband or wife died without a Will. There is also an even shorter window of six months from the date of death for making such a claim.

It may not be the most romantic way to start the New Year but putting your relationships on a contractual basis can potentially save a lot of heartache in the long run.