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There is no such thing as a common-law marriage in Scotland (or indeed in England/Wales),  it is a myth and a fallacy. Couples who reside together in an intimate relationship are either married or co-habitating.   The Family Law (Scotland) Act 2006 makes some financial provision  and   provides discretion to the court for both making of an award and the amount to be awarded when cohabitation has ended otherwise than by the death of one of the cohabitees, these are detailed below.

The Family Law (Scotland) Act 2006,  provides a set of basic rights for cohabitants whose relationship ends covering:

  •  the sharing of household goods, bought during the time the couple lived together. This means that if you cannot agree about who owns any household goods, the law will assume that you both own it jointly and must share it or share what it is worth;
  •  an equal share in money derived from an allowance made by one or other of the couple for household expenses and/or any property bought out of that money. It is important to understand that this does not apply to the house that the couple live in;
  • financial provision when, as a result of the decisions the couple made together during the relationship, one partner has been financially disadvantaged. This means, for example, if the couple decided that one partner would give up a career to look after their children, they can ask the court to look at the effect that decision had on that partner’s ability to earn money after the relationship has ended;
  •  an assumption that both parents will continue to share the cost of childcare if they had children together

The court would decide on how the property would be divided, but as I’ve said before, when co-habituating couples buy a house together, the law, as stated in s presumes they own it 50/50 (unless they have signed a prior agreement stating who owns what percentage of the house).

A co-habituating relationship is defined by characteristics that are common for husbands and wives – ie share mutual interests, share a social life, be economically inter-dependant and be regarded as a member of the other’s wider family. As the marital relationship is ­base­d upon sex, so living together as husband and wife requires that the couples’ relationship be, or at least have been at an earlier stage, sexually intimate. The fact you have a child together proves this last and important point.

Financial Provision for Co-Habitees

A co-habituating relationship is defined by characteristics that are common for husbands and wives – ie share mutual interests, share a social life, be economically inter-dependant and be regarded as a member of the other’s wider family. As the marital relationship is ­base­d upon sex, so living together as husband and wife requires that the couples’ relationship be, or at least have been at an earlier stage, sexually intimate. A child or children together would prove this last and important point.</p><p>

S28, (2) of the Family Law (Scotland) Act 2006 provides:

“on the application of a cohabitant (the applicant) the appropriate court may, after having regard to the matters in sub-section 3 – (a) make an order requiring the other cohabitant (the defender) to pay capital sum of an amount specified in the order to the applicant (b) make an order requiring the defender to pay such an amount as may be specified in the order in respect of any economic burden of caring, after the end of the cohabitation, for a child of whom the cohabitants are the parents; (c) make such an interim order as it sees fit.”

Subsection 3 – those matters are:

“(a) whether 9and, if so to what extent) the defender has derived economic advantage from contributions made by the applicant; and (b) whether (and, if so, to what extend_ the applicant has suffered economic disadvantage in the interest of – the defender or to any relevant child.”

These sections provide a basic set of rights and are also what the Court would take into consideration when considering a claim for financial disadvantage, for co-habitees who end their relationship and co-habitation:

  •  the sharing of household goods, bought during the time the couple lived together. This means that if you cannot agree about who owns
  • any household goods, the law will assume that you both own it jointly and must share it or share what it is worth;
  • An equal share in money derived from an allowance made by one or other of the couple for household expenses and/or any property bought out of that money. It is important to understand that this does not apply to the house that the couple live in;
  •  Financial provision when, as a result of the decisions the couple made together during the relationship, one partner has been financially disadvantaged. This means, for example, if the couple decided that one partner would give up a career to look after their children, they can ask the court to look at the effect that decision had on that partner’s ability to earn money after the relationship has ended;
  •  An assumption that both parents will continue to share the cost of childcare if they had children together

Property which is in the name of one party only will remain in the sole ownership of that named party, while property that is jointly owned by the two parties (and where there is no Deed of Trust stating otherwise) is presumed, in law, that each party shall own an equal share of the property.

A claim for financial disadvantage under Section 28 of the Family Law Act (Scotland) 2006 must be made within 12 months of the relationship ending. Should the date of the ending of the co-habitation be disputed, then Court will require the matter to be proved. A pursuer’s entitlement to seek a capital sum from the defender would depend on if this is necessary to rebalance any contributions (ie mortgage payments) or disadvantages suffered for the benefit of the relationship or in order to share future child-care costs (if there are children from the relationship). The Court would decide if any advantage has been offset by any disadvantage, and could specify the amount of the Order, a date on which it should be paid, and if it should be paid as a lump sum or as instalments.

A recent case bought before the Supreme Court (Gow v Grant [2012])  saw a successful application by Ms Gow for financial redress under the principle of “economic advantage, disadvantage or contribution”, usually it is younger former cohabitants  with young children who would seek to redress the financial burden of financially providing for those children; however in the case of Gow v Grant, it provided a precedent for those more mature co-habitats,  where one party is likely to have suffered a greater financial disadvantage by selling their home and at least a portion of their income.

 

(c) Ruth Langford