Family & Matrimonial
Cohabitation
- rights in certain property;
- the right to apply for financial provision when a relationship breaks down;
- the right to apply for financial provision when one of the cohabitants dies.
What is cohabitation?
- the length of period during which the two people were living together;
- the nature of the relationship during that period; the nature and extent of any financial arrangements during that period the two people have been living together or lived together.
The rights
- an order for the payment of a capital sum;
- an order to pay money in respect of any economic burden of caring, after the end of the cohabitation, for a child (a person under 16) of the cohabitants;
- any interim order that the court thinks is appropriate.
In considering whether to make any of these orders, the court must consider whether (and to what extent) one cohabitant has gained any economic advantage from contributions made by the cohabitant 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, or a relevant child. A relevant child can be a child of the cohabitants or a child accepted as a child of the family.
3. The right to apply for financial provision when one of the cohabitants dies
If one cohabitant dies intestate (without making a will), the surviving cohabitant has a right to apply to the court for an award from the deceased cohabitant’s estate. It should be noted that if the deceased spouse had a will, but a portion of the estate was not disposed of by the will, that portion can be subject to a claim.
The award can comprise payment of a sum of money or transfer of property (including heritable property such as the home). The award cannot exceed the amount the cohabitant would have been entitled to if he or she had been married to the deceased cohabitant. The court must take account of certain factors when deciding whether to make an award. These include the size of the deceased cohabitant’s estate, any other benefits the surviving cohabitant will receive, and any other claims against the estate.
Time Limits
Wills
As explained above, a cohabitant can make a claim on the deceased cohabitant’s estate on intestacy (where there is no will). There is no substitute for a will. If a will is well drafted and covers all of the estate, then no application can be made by a cohabitant. This is important to some individuals. For example, when individuals are in second relationships, it is often important that the estate is protected so that children from previous relationships are the only or main beneficiaries of the estate.