Not married? Know the time limits to resolve any financial claims.
A growing percentage of the population are choosing to cohabit rather than marry. Whilst there are various reasons for that shift, the law as it applies to Cohabitants is very different to those who are married, in particular in relation to time limits for Cohabitants seeking to resolve financial issues.
When you are married and separate, there is no time limit on your ability to make financial claims against your spouse. You could separate for 10 years and still make financial claims under the relevant legislation. Only the signing of a Minute of Agreement (Separation Agreement) or Divorce being granted can bring that right to an end.
The position for Cohabitants is entirely different, both in life and death.
Sections 25-30 of The Family Law (Scotland) Act 2006 sets out the law as it applies to Cohabitants. When you separate (this is when you cease living together as if you were husband and wife rather than when someone physically leaves the home) you only have 12 months in which to resolve any financial claims arising from the separation. If you fail to resolve such claims within that period you lose the ability to make claims under this legislation. The normal methods to resolve such claims are either entering into a Cohabitation Agreement (Minute of Agreement) which is a legal binding contract about what has been agreed or by raising a court action (either if an agreement cannot be reached or there is insufficient time to do so before the 12 months runs out).
Common examples of where claims can arise include:-
- A cohabitant contributing a lump sum of money into a property owned solely by the other cohabitant.
- A cohabitant who, after separation, has the economic burden of looking after any children of the relationship.
- A cohabitant being left with all of the debts accrued during the relationship.
If you thought the timescales for making claims where both cohabitants are alive were tight, you only have 6 months in which to resolve any claims where one cohabitant has passed away. Also, you can only pursue a claim where the deceased cohabitant has died Intestate (i.e. without a Will). Failure to take steps within that timeframe result in you being legally barred from pursuing a claim thereafter.
These cases can be particularly difficult given the time limits and due to the fact that other family members can become involved in dealing with the deceased person’s estate. This makes knowing who to raise the action against quite difficult.
It is therefore vitally important that Cohabitants, if they have a Will, make appropriate provision for the partner and/or children. If a Will has not been updated since the deceased Cohabitant started their relationship it can have unintended consquences and, due to the terms of the current legislation, you can only pursue a claim if the deceased Cohabitant did not have a Will.
In either scenario (Life or Death), it is vitally important to get advice quickly. We are experts in this area of law and would be happy to speak to you to discuss matters further. Please contact us