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Cohabitation - Why time is of the essence

“There is nothing more expensive than a missed opportunity” H. Jackson Brown, Jnr

The Family Law (Scotland) Act 2006 Sections 28 and 29 introduced the possibility for former cohabitants to make a claim upon separation or death, however there are very specific deadlines and differences in the potential claims a former co-habitant may apply for, compared with spouses.

Crucially, if you have separated from your former cohabitant, you need to make your application under Section 28 not later than one year after the date on which you ceased to cohabit.

One school of thought is that, if parties have chosen not to marry or enter into a civil partnership, they ought to be free to move on from their relationship more quickly than a couple who have entered into the formality of marriage or a civil partnership. The trouble is, that does not take account of the fact that following upon separation one or both parties may be very upset. It could take either or both of them some time to come to terms with the separation and seek advice if they wish to consider making a claim. There may even be a dispute as to whether they were “cohabitants” in the first place or a dispute about the date of separation.

Section 28 claims are often very complicated and each claim must be considered very carefully on its merits or otherwise. This means that it is extremely important that you consult with an expert family lawyer at the earliest available opportunity so that you can take advice if you may have a possible claim. You don’t want to find that you miss the deadline to make the claim.

The Family Law (Scotland) Act 2006 also introduced the possibility of making a claim following the death of a cohabitant who had not made a Will.

Crucially, any application under Section 29 requires to be made within six months of the date on which the deceased died.

Again, each claim must be considered very carefully on its merits by an expert family lawyer as to the possibility or extent of any such claim. Given that there are only six months within which one can make the claim, it is of the utmost importance to seek urgent legal advice at the earliest possible opportunity.

Time for a Reform of the Law relating to former cohabitants?

Whilst at first blush the provisions in Section 28 and Section 29 of the Family Law (Scotland) Act 2006 may be seen as a welcome development in family law in Scotland, the reality is these claims are by no means straightforward.

This year, the Law Society of Scotland has produced a consultation document considering the reform of cohabitants’ rights. The objective of the project is to set out proposals for change to the law in relation to cohabitants and their rights to claim under Sections 28 and 29 of the Family Law (Scotland) Act 2006. For more information about the project, please see https://www.lawscot.org.uk/news-and-events/news/law-society-launches-rights-of-cohabitants-consultation/

The Law Society of Scotland consultation document refers to the unreported case of Hendry v. Bruce and links to an article I wrote (while at my previous firm, Brodies LLP) which was published in the Journal of the Law Society of Scotland see http://www.journalonline.co.uk/Magazine/59-10/1014551.aspx In that particular case, the Defender was successful in arguing that the Section 29 claim was time barred.

If you are considering whether to make a claim under Section 28 or 29 of the Family Law (Scotland) Act 2006, please do make an appointment to speak with one of our expert family lawyers without delay. In our experience, the deadlines pass very quickly, and it would be unfortunate to look back with regret, and view a failure to make a claim in time as a lost opportunity.

You can find information about the costs for a meeting with one of our expert family law team and how we charge our time on our website at www.familylawmattersscotland.co.uk/our-fees

We are here to help, family law is our business, and where your family matters.

Family Law Matters Scotland LLP is an award-winning boutique family law practice. If you would like to make an appointment to speak to one of our solicitors, please contact Konnie, our receptionist on 0141 420 2430.

Michaela Hinchin

N.B Please note the contents of this Blog do not constitute any form of legal advice and you should always obtain individual advice as to your rights from a family lawyer.

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