John M Fotheringham draws attention to the dangers of ignoring a potential alternative jurisdiction, based on domicile, for a valuable statutory claim

In SJ160/30, Mariko Wilson of Family Law in Partnership wrote on the commonly held false beliefs about cohabitation. However, the article didn't mention the Scottish angle which could affect English clients and, therefore, their practitioners.

The main point to highlight is that the Scottish statutory cohabitation scheme can apply if either party is domiciled in Scotland - habitual residence is not the criterion - so it will be necessary to ask your English cohabitant client about the domicile of the former partner lest you allow the short and strict time bar to cut off your client's potential claim. Using the format of Wilson's article:

Myth: a couple living together will become common law husband and wife after a certain period of time.

In Scotland, if the couple have cohabited sufficiently as man and wife, and are generally thought to be spouses, the court could declare that they have been married by cohabitation with habit and repute (CHR). The cohabitation is a way of constituting marriage - the order of the court merely recognizes it.

The concept of marriage CHR has been abolished for new cases since 4 May 2006, but if a couple began their cohabitation before that the court can still recognize the marriage as being valid even though no ceremony has taken place.

There is a generation of these cases left, and it would be risky to ignore the possibility of the remedy. It's of greatest use, of course, in succession cases in which one of the important witnesses is busy giving evidence before a somewhat Higher Tribunal.

Myth: at the end of a long relationship which has produced children, the party who is weaker financially has an entitlement to some of the family capital.

The relationship does not have to have been particularly long, and the presence of children is not essential for the claim to exist. The test for the capital claim - there is no income claim - is analogous to retained benefit.

If one party has suffered economic disadvantage and the other party has had corresponding economic advantage as a result of the cohabitation there can be a very valuable claim if the parties separate.

Again, domicile is the criterion so the solicitor has to know to ask the relevant question. The client is unlikely to think of mentioning it.

Myth: Cohabitants inherit each other's assets on death in the absence of a will.

The bereaved cohabitant can make a claim on the intestate estate under section 29 of the Family Law (Scotland) Act 2006. The court is not given much guidance about the extent of the claim but the criteria used in the case where the couple simply separate are relevant.

The only restriction on the sum is that it cannot be greater than the surviving spouse would have had under the ordinary Scots intestate succession rules.

Myth: Unmarried couples have the same rights in connection with their children.

Scots and English law are almost identical on this point.

Myth: The legal situation with regard to cohabitants is evolving and will soon be better protected by the law.

The position in England and Wales is unlikely to develop much further. The courts have done what they can, and the ball lies at the feet of the legislature.

The Scots statutory system, which has proved useful for ten years, is, like all statutes, imperfect, and the Scottish government is committed to improving it, especially in respect of claims against the intestate estate of a deceased cohabitant.

Practical guidance

Always ask the questions about a possible Scottish domicile connection, even if it's not obvious. One of the features of the Scottish system is its short and strict time bars. If the couple separate the claim must be made within 12 months of the cessation of cohabitation. That date may be a long time before the actual separation, so the clock may have been ticking for some time before the client comes to see you.

The claim against the intestate estate is even shorter at six months from the death - not six months from probate or confirmation.

Good claims are becoming time barred all over England and Wales all the time. Sooner or later one of these English or Welsh clients is going to find out about it.

John M Fotheringham is a consultant at Shoosmiths @shoosmiths

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