Cohabitees who assume they have the same rights as married couples and civil partners may be in for a shock. But it’s possible that changes to the law will help them.
You will know already that lawyers – or rather, the people who draft and interpret the law – are prone to understatement. So when the legal great and good say that, ‘Practitioners have identified a number of issues with the operation’ of certain laws, what they mean is rather more colourful than that.
This is the situation with the law relating to cohabitees, or specifically what happens if they split up or die.
Practitioners have ‘identified a number of issues with’ the existing laws that put even longstanding cohabiting families in a weaker position than married people or civil partners.
Changing the law
The good news for cohabitees is that things are set to change as the Scottish Law Commission is reviewing the law relating to cohabiting couples.
The bad news is that nothing will improve immediately. A recent Scottish Law Commission discussion paper will be followed by a report and an impact assessment, and then by further discussion. After that, a Bill will still need to be drafted and taken through Parliament, which is unlikely to take place until 2021.
In the meantime, cohabitees will still be vulnerable. For example, did you know:
- if a cohabitee dies without a Will, their partner is not necessarily entitled to inherit their share of the home or carry on living there
- unlike spouses, civil partners and children, cohabitees do not have automatic ‘legal rights’ protecting them from disinheritance
- if cohabitees split up, they may not be able to reclaim their share of the deposit on their home.
Protection for cohabitees
There are two ways for cohabitees to protect themselves against situations like those. The first is to make a Will, specifying what you want your partner to inherit.
The second is to ask a family law solicitor to draw up a simple cohabitation agreement, setting out what should happen to your property and possessions if you split up. For example, you could agree practical mechanisms for one person buying the other out or getting their deposit back.
The current law review may well clear up some of the deficiencies of the current law on cohabitation, but we would caution against relying wholly on a law change to protect your own rights and assets. Only with a cohabitation agreement, as with a prenuptial agreement, can you get an agreement and solutions designed for your own circumstances.
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