By John Fotheringham
Family law solicitor at Fyfe Ireland
John Fotheringham, a family and child law specialist solicitor at Fyfe Ireland in Edinburgh explains the changes to the law of cohabitation in Scotland.
Politicians, clergy and others have been arguing about the rights and obligations which should apply in England and Wales to cohabitants - people who live together without being married.
The policy decisions are causing arguments in Parliament, especially amongst those who fear that giving rights to cohabitants will threaten marriage.
In Scotland the matter was decided last year.
Since 4 May 2006 a couple who live together as if married (or as if they were a registered same-sex partnership) have had rights and obligations between them, whether they like it or not - and even whether they know about it or not.
This quiet revolution in Scots family law is complete - it is just that not many people seem to have heard of it yet.
By the time some people do find out about the new laws it will be too late for them because of the very strict time bars - 12 months after separation and six months after a death.
Beware too the interpretation of the 12-month time period since it may not start exactly when you think it does.
If the couple separate then either can claim against the other for any economic disadvantage that he or she has suffered in the interest of the family unit, and for any economic advantage that the other person has gained.
The one thing that cannot be claimed is the house that the couple shared, unless of course it is already in joint names.
If the cohabitation ends by the death of one of the couple and if the deceased left no will, then the survivor can make a rather bigger claim based on several different factors, such as the length of time the couple were together.
In this case the survivor claim can include the house.
So who can use this new Scots law?
The rules about jurisdiction are actually quite complex, even after a raft of European regulation which might have made the law simpler.
Generally, if there is any Scottish element to the facts at all it is worth at least asking your lawyer about a possible claim.
In some circumstances, either or both of the couple may now be living happily in England and Wales and there is still the possibility of a substantial claim under Scots Law.
It is worth checking with a solicitor if you think your case might fall within the jurisdiction of the Scottish Courts.
Note: It is likely that the Law of England and Wales will change in the next year or two along the same sort of lines.
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