Rights of a Common Law Wife – Do they exist?
I have been living with my partner for many years, if we were to separate would I have rights as a common law wife?
In Scotland common law marriage does not exist. Historically some irregular marriages called “Marriage by Cohabitation with Habit and Repute” could apply to couples who lived together and were generally thought by others to be married. This was, however, abolished by the Family Law (Scotland) Act 2006 (hereinafter referred to as “The 2006 Act”) The 2006 Act instead provides a legal framework setting out the rights of cohabitants, introducing rights to household goods, the right to apply for financial provision when a relationship breaks down and the right to apply for financial provision when one cohabitant dies.
To determine whether two people are cohabiting, a Court of competent jurisdiction would consider the following:-
(a) The length of time two people were living together.
(b) The nature of their relationship during that period.
(c) The nature and extent of the couple’s financial arrangement during the period they lived together.
The law does not set down a minimum period of cohabitation before a claim can be made under The 2006 Act.
The law in relation to cohabitation creates a presumption that each cohabitant has a right to an equal share in “household goods” acquired during the time they lived together. Household goods are defined as anything kept or used during the cohabitation for the couple’s direct domestic purpose in any residence in which the cohabitants were living together. Money, securities and motor vehicles are specifically excluded from this definition. Cohabitants also have a right to claim an equal share of any money derived from any allowance made by either cohabitant for their joint household expenses or for similar purposes or any property acquired out of such money.
It is important to note that the law makes no provision regarding the house in which the cohabitants live in together.
On separation a cohabitant can apply to a Court of competent jurisdiction, for financial provision. A cohabitant can ask for an order against their former partner for a capital sum. In considering whether to make such an order a Court must consider whether (and to what extent) one cohabitant has gained any economic advantage from contributions made by the cohabitant who is making the application for financial provision. The Court must also consider whether (and to what extent) the cohabitant making the application has suffered economic disadvantage in the interests of the other cohabitant. A cohabitant may also seek a further sum to reflect the economic burden of caring for any child of the relationship and the same advantage/disadvantage test will apply.
One important factor, which Macleod & MacCallum’s family law team would always advise clients to be aware of, is that a cohabitant’s right to make a claim against their ex-partner lasts for only one year following the parties’ separation. This is a strict time limit which means that if an agreement with your ex-partner cannot be agreed amicably, a Court action would have to be raised before that one year time limit expired.
Finally, The 2006 Act gives cohabitants the right to apply for financial provision following the death of their partner, provided they were still cohabiting with them at the time of their death and provided their partner died without having a Will. In these circumstances the claim must be raised within six months of their partner’s death. It is therefore very important to take legal advice as soon as possible in these circumstances as the Court has no discretion when it comes to this strict time limit.
If you would like further advice with regard to a potential cohabitation claim please contact a member of Macleod & MacCallum’s family team.