Cohabitation and Succession Rights – 3
As will have been seen from the first and second of this series of articles, the present law appears to be of limited use to cohabitees. Of course, there are arguments to the effect that (i) if people wish to have more extensive and clear rights, they should get married or enter a civil partnership or (ii) many cohabitations are short term or arrangements with little deep commitment. Leading on from that logic, it is argued that legislators should be wary of bestowing rights on surviving cohabitees to the prejudice or detriment of family members.
However, the world is a far more complex place in practice. The fact remains that people can devote a great deal of their lives and resources to cohabitation relationships and become dependent on their cohabitants on many levels within a short period of time.
These difficulties have now reached the point where the Scottish Law Commission have recently made recommendations to replace section 29 entirely with a new set of criteria. These are proposed as (i) length of cohabitation, (ii) the interdependence between the parties to the cohabitation and (iii) the surviving party’s contribution to family life.
Two matters arise from this.
Firstly, the factors appear to approach matters on a similar basis to the way that a court looks at divorces between married couples. It looks at what has actually happened in the relationship as opposed to levels of need at the end of the relationship. As such, at least, there is some parity approach with marriage and civil partnerships.
Secondly, however, there is still a general vagueness to the legal mechanism which could only be fleshed out in future caselaw. By implication, this is unhelpful to parties and their legal advisers at the present time. How will a court take a view on matters such as the level of interdependence and the level of non-financial contribution to family life?
Given the costs and risks involved in litigation in the first place, it is perhaps unlikely that a large body of caselaw will be built up over the short term. The level of uncertainty would be high unless the tests are made a little more detailed with a list of underlying factors for a court to consider. If this is not done, then there is a risk that any new legislation will not markedly improve matters.
As a final word in this 10 year review, the Scottish Law Commission has recommended extending the proposed cohabitee’s rights not just to situations where the deceased left no will but also to situations where there is a will in place. This would extend a surviving cohabitee’s right to a new set of circumstances. If that comes to pass, it will address the common situation where there is a neglect to change wills in line with the new circumstances of a relationship.