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What happens when an unmarried couple separates?

29th May 2018

Over the last 50 years, perhaps, the relationships and families which constitute the fabric of our society have changed.  It is no longer the case that the great majority of families are centred around a married couple.  There are almost as many families now centred around an unmarried couple, as there are based upon a married couple.

There are complex and well established rules of law dealing with how property and funds are shared between a married couple on separation.  Until 2006 if an unmarried couple, whatever the duration and depth of their relationship, separated then there were no family law provisions as to how property and funds might be shared fairly between them, unless people thought that they were married.

This situation was changed to a substantial extent by the rules contained within the Family Law (Scotland) Act 2006.

Within that Act certain rules were laid down which allowed unmarried couples (called cohabitants in the Act), upon separation, access to fair legal procedures in relation to their property and funds.

The first significant point is to determine whether the relationship between the cohabitants is of such depth and significance to allow the rules contained within the Act to apply.

The cohabitants require to demonstrate that they had a commitment towards each other which is analogous to the nature of the relationship expected of a married couple. There are a number of criteria which are considered, guidance upon which can be received from a solicitor experienced in this area of law..

If the relationship between the cohabiting couple, be they a same sex couple or a heterosexual couple, is viewed as having this level of commitment, then the rules contained within the Act can be applied.

These rules are complex, and are very different in their nature to the rules which apply to a married couple.

With a cohabiting couple an assessment is made as to whether either one of the couple has gained a financial advantage arising from the relationship, at the expense of the other.  In effect, has one gained a financial advantage and the other been prejudiced financially?  If it is established that there is such an unfair imbalance, then the rules allow for the one who has been disadvantaged to receive a form of financial compensation from the one who has enjoyed financial advantage. If there are children the parent with the greater burden of child care may also have a claim against the other parent as their former cohabitant under the Act.

A very important point here is that, when a cohabiting couple separate, any claim which one might wish to make upon the other has to be raised within one year of the date of separation.  This rule introduces considerable difficulty, not least calculating when the date of separation actually took place.

Standing these complexities, the very best first step for a cohabitant who has recently separated to take is to seek very urgent advice from a family law solicitor who has experience in this area.  At Morisons we have conducted a number of cases arising out of claims between separated cohabitants, including one of the leading reported cases upon this subject.  The solicitors within our Family Law Team are all experienced in this area, and very well able to offer early, detailed, reliable and sympathetic advice.


*The content of this webpage is for information only and is not intended to be construed as legal advice.

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Divorce & Family Law Specialist Scotland- Alasdair Docwra

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