Calls for cohabitation claim reform in England & Wales: will they follow Scotland’s example?

7 February 2011

The national press has been full of questions about cohabitation claims over the past couple of weeks due to calls for change to the law in England & Wales. At Inksters, we have had key involvement in acting for parties in cohabitation claims in Scotland, an area which is still developing.

Sir Nicholas Wall, Head of the Family Division of the High Court of Justice in England and Wales, is calling for reform. He wants unmarried couples who have been living together to be able to make financial claims against each other when their relationship breaks down. At the moment, there is very little scope for this in England and Wales.

If English law-makers looked to Scotland, they would see a very different situation. But should they follow Scotland’s example?

The Family Law (Scotland) Act 2006 gives some rights to cohabitants to make claims in these circumstances. Scots law describes cohabitants as those living together as husband and wife or as civil partners. It does not give a time-limit on how long the couple should have been living together but this is a factor to be considered when weighing up whether they qualify as cohabitants.

However, cohabiting people are not ‘common law husband and wife’ as many people think, and their claims are not the same as those made during a divorce. In divorce, there is a presumption of a fair division of all matrimonial property, whether that is in joint names or in the sole name of either party. However, a cohabitant is in a much weaker position. Put broadly, the court may make an award, and in doing so will consider whether their former partner had gained economic advantage from their relationship, and/or whether they had suffered economic disadvantage from the relationship or from the burden of caring for a child of that relationship.  Awards have been modest, and they have proved difficult to prove in some circumstances. Inksters are involved in an important appeal which could have a major impact in how these claims evolve.

Scotland has effectively come to a compromise on cohabitation claims - they can be made but they are not as strong as those which can be made on divorce. If law-makers in England and Wales listen to the calls of Sir Nicholas Wall and legislate in this area, they may well come to a different compromise. How this works in practice will shed a very interesting light on our own laws.

One last point – cohabitation claims in Scotland must be made within a very strict time-limit or they will be lost. It is vital that no-one delays in getting advice on this area as quickly as possible.

If you need advice on cohabitation claims in Scotland, contact Inksters’ Gus Macaulay on 0141 229 0880 or send Gus an e-mail.


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