Cohabitation Right to Claim Part 1
Scots Law has long recognised the right of a spouse (and, more recently, a civil partner) to a share of his or her predeceasing spouse’s or civil partner’s estate.
Now, as a result of The Family Law (Scotland) Act 2006, non-married and non-civilly enpartnered co-habitees have, in certain circumstances, a right to claim from the estate.
The relevant provisions (contained in Section 29 of the Act) came into effect on 4th May 2006.
The opportunity to claim on a deceased partner’s estate, within six months of the date of death, is only available where the partner died without leaving a Will, and immediately before the death, he or she was domiciled in Scotland.
Firstly, however, the deceased must have been a cohabitant at the time of his or her death i.e.
(a) A man and a women who are (or were) living together as if they were husband and wife; or
(b) Two persons of the same sex who are (or were) living together as if they were civil partners.
The Court must consider the duration of the cohabitation, the nature of the relationship, and the extent of any financial arrangements that subsisted during the relationship, but may also have regard to other matters, such as whether there are children of the relationship, how it was perceived by the couple’s families and friends, etc.
The link to matrimony or civil partnership is thought to indicate the Parliament’s intention to restrict the benefits of the Act to stable ‘family’ relationships only.
It is essential that the couple actually lived together, so relationships, however close, say between a widow and widower each living in their own home, would not meet the test.
Most commentators also interpret the link to matrimony or civil partnership as indicating the Parliament’s intention that the relationship will be, at least potentially, of a sexual nature.
While that might be a clear implication where a couple are living together as if they were husband and wife, it is less so for couples living together as if they were civil partners, as the civil partnership legislation has no equivalent sexual expectations or concepts to those found in matrimonial legislation, such as consummation, adultery, etc. It is unlikely however that Parliament intended different standards to apply depending on whether the couple were of the same or opposite sexes.
Celibate relationships, whether within marriage or civil partnership, are far from unknown, whether as a lifestyle choice or the result of ill health, age, etc., so it will be interesting to see whether the Courts will agree with the commentators’ interpretation.
Entitlement is based on the deceased’s domicile at death. A claim can only be made where the deceased died domiciled in Scotland.
It is also necessary that the couple were cohabiting immediately before the death.
If a couple, during their joint lifetimes, satisfied the definition of cohabitants contained in Section 25, but were not living together immediately before the death – because one partner was in hospital or a care home, or even in prison – is the survivor to be deprived of the right to make a claim? It is not thought that the Courts will be too rigid in their interpretation of this requirement.
Finally, claims must be made within six months of the death, beginning with the day on which the death occurred. The Act confers no discretion on the Court to extend this deadline. So, if one’s partner died on, say, 4th November 2007, the claim would have to be lodged in Court no later than 3rd May 2008.
While these new rights are welcome, as bringing the law more into line with public perceptions of fairness in our now more variously organised domestic relationships, they are capable of creating uncertainty and delay at a time of bereavement. They should not be regarded as any substitute for a suitable Will and/or Cohabitation Agreement. It is always better to determine for oneself what will happen to one’s estate after death, rather than to leave that to the discretion of courts in perhaps contested court proceedings after the event!
In the next article, we will look at what can be claimed by the surviving co-habitee.
If any of these issues affect you, please seek independent professional advice.
Article compiled by: Frank Fletcher
Posted by Sharon Clift on May 06, 2008
