Adult Relations: Cohabitation (Scotland)

Adult Relations: Cohabitation (Scotland)

1. Cohabitation

   • Living together as husband and wife?
   • Signposts
     • members of same household
     • stability of relationship
     • sexual relationship
     • financial support
     • children
     • public acknowledgement
   • see Ghaidan v Godin-Mendoza [2004] 3 WLR
     • (in What is a Family? Mindmap
       • What is a Family?

2. Family Law (Scotland) Act 2006

   • Cohabitant?
     • s.25(1) in s.26 to s.29 "cohabitant" means either member of a couple consisting of
       • (a) a man and a woman who are (or were) living together as if they were husband and wife (see s.4 Marriage and Civil Partnership (Scotland) Act 2014 for interpretation of "husband and wife" to include same-sex couples)
     • s.24(2) in determining ... whether a person ("A") is a cohabitant of another person ("B") the court shall have regard to
       • (a) length of the period during which A and B have been living together (or lived together)
       • (b) nature of the relationship during that period
       • (c) the nature and extent of any financial arrangements subsisting, or which subsisted, during that period

3. Financial Provision on Splitting Up

   • Family Law (Scotland) Act 2006
     • s.28(1) ss.(2) applies where cohabitants cease to cohabit otherwise than by reason of death
       • s.28(2) on the application of a cohabitants the court may, after having regard to ... ss.(3)
         • (a) make an order requiring the other cohabitant to pay a capital sum ... to the applicant
         • (b) make an order requiring the defender to pay such amount as may be specified in the order in respect of any economic burden of caring ... for a child whom the cohabitants are parents
         • s.28(3)(a) [having regard to] whether (a) ... the defender has derived economic advantage from contributions made by applicant; and (b) whether ... the applicant has suffered economic disadvantage in the interests of (i) the defender (ii) any relevant child
           • s.28(4) in considering whether to make an order under ss.(2)(a) the court shall have regard to ss.(5) and ss.(6)
             • s.28(5) the extent to which any economic disadvantage derived by the defender ... is offset by any economic disadvantage suffered by the defender in the interests of
               • (a) the aplicant
               • (b) the relevant child
               • s.25(6) the extent to which disadvantage suffered by the applicant in the interests of
                 • (a) the applicant
                 • (b) the relevant child
                 • is offset by any economic advantage the applicant has derived from contributions made by the defender
     • s.28 subsections
       • (8) any application shall be made not later than one year after the day on which the cohabitants cease to cohabit
         • (9) "child" means a person under the age of 16; "contributions" includes indirect and non-financial contributions and, in particular, looking after any relevant child or any house in which they cohabited
           • (10) a child is "relevant" if
             • (a) a child of whom the cohabitants are parents
             • (b) a child who is or was accepted by the cohabitants as a child of the family
             • Gow v Grant [2012] UKSC 29
     • s.29 Claims on partners intestate estate (non-examinable)

4. Matrimonial Homes (Family Protection) (Scotland) Act 1981

   • s.18(2) in determining whether two persons are a cohabiting couple the court shall have regard to all the circumstances of the case including
     • (a) the time for which it appears they have been living together
     • (b) whether there is any child
       • (i) of whom they are the parents
       • (ii) who they have treated as a child of their own
   • Rights derived from the Act
     • s.18(1) occupancy rights (>6 months at a time)
     • s.18(3) s.2/3/4/5/13/22 generally DO apply to cohabitants
       • s.2 - subsidiary and consequential rights
       • s.3 - regulation by court of rights of occupancy of matrimonial home
       • s.4 - exclusion orders
       • s.5 - duration of orders under s.3 & s.4
       • s.13 - transfer of tenancy
       • s.22 - interpretation
     • s.18(5) s.6 does NOT apply to cohabitants
       • s.6 - continued exercise of occupancy rights after dealing