The Family Law (Scotland) Act 2006 created an important set of rights for people who live together as partners without being married or in a civil partnership. This guide explains the key protections for cohabitants, including financial claims, rights in household goods, and how the law treats property when a relationship ends.
Who Qualifies as a Cohabitant?
To make use of the rights under the 2006 Act, a person must meet the statutory definition of a cohabitant.
A cohabitant is someone who lives, or lived, with another person as if they were spouses. This definition applies to both mixed-sex and same-sex couples.
When deciding whether a couple were cohabitants, the court considers:
- How long they lived together
- The nature of their relationship
- How they arranged their finances during that period
Financial Claims After Separation
One of the most significant features of the 2006 Act is that it allows former cohabitants to seek financial provision from their ex-partner.
Strict Time Limit
A claim must be raised within one year of separation.
The court has no power to extend this deadline.
Types of Orders the Court Can Make
Under section 28 of the 2006 Act, the court may grant:
- A capital sum to compensate for economic advantage or disadvantage.
- A payment to cover the economic burden of caring for a child of the relationship after separation.
- Interim orders while the case is ongoing
The court cannot order property transfers or pension sharing for cohabitants.
Payments may be made in instalments or deferred.
How the Court Assesses Economic Advantage and Disadvantage
Before granting a capital sum, the court assesses whether one partner has been economically advantaged, or the other economically disadvantaged, as a result of the relationship.
This includes:
- Contributions to income, earning capacity, or capital
- Non-financial contributions, such as caring for a child or maintaining the home
The court then balances:
- Any advantage gained by the defender that is offset by disadvantage
- Any disadvantage suffered by the applicant that is offset by advantage
A capital award is only made if this balancing exercise shows a net imbalance in favour of the applicant.
The Approach in Gow v Grant (2012)
The Supreme Court emphasised that these assessments should be guided by fairness, not precise accounting. A practical, broad-brush approach is preferred.
Household Goods
Section 26 of the 2006 Act deals with ownership of household goods used during the relationship.
Key Points
- There is a presumption that cohabitants own household goods equally if bought during the relationship.
- “Household goods” includes decorative and functional items but excludes money, cars, pets, and anything gifted or inherited by one partner.
- The presumption can be overturned if the evidence shows otherwise.
Savings and Property Purchased from Housekeeping Money
Section 27 creates a presumption that savings made from housekeeping allowances, or property bought with those savings, belong to each cohabitant equally, unless they agreed differently.
This does not apply to the couple’s home or other land/buildings.
Heritable Property (Land and Buildings)
The 2006 Act provides very limited rights regarding heritable property such as:
- The family home
- Investment properties
- Other land or buildings
Ownership is determined by the title deeds. If the property is in one person’s name, that person is the legal owner.
However, if the non-owner contributed financially (e.g., mortgage payments, improvements, bills) and raises a claim within the one-year time limit, these contributions may be considered when assessing a financial award.
Unjustified Enrichment
If the statutory deadline for a claim has passed, a cohabitant may still have a potential remedy under the law of unjustified enrichment. This applies where one person has been enriched at the expense of another without legal justification.
Pert v McCaffrey (2020)
The Court of Session confirmed that an expired claim under section 28 does not prevent a cohabitant from seeking compensation through unjustified enrichment. Each case turns on its circumstances.
Conclusion
The Family Law (Scotland) Act 2006 offers significant, but limited protections for cohabitants. The law focuses on fairness, economic realities, and the contributions partners make during their relationship. However, strict time limits and limited property rights mean early legal advice is crucial for anyone separating from a cohabiting relationship.
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Our website articles are not legal advice. We accept no responsibility for use of this information.
For advice on your specific circumstances, contact XK Family Law Solicitors Aberdeen directly.