Cohabitee cases

Page contents:

This page includes merits information on various types of cohabitee-related cases. These include Section 28 actions (provision on separation for cohabitees); and Section 29 actions (provision on intestacy).

Orders for financial provision and provision on intestacy – cohabitees

Applications to pursue

The Family Law (Scotland) Act 2006 provides rights for cohabitees to financial provision on separation and rights on intestacy. We need to be satisfied that your client can properly be described as a cohabitee of the opponent. Your client needs to show us that the couple are or were living together as if they were husband or wife or civil partners.

We need evidence of:

Length of the period living together
Nature of the relationship
Nature and extent of any financial arrangements during that period.

Financial provision on separation

Your client may apply to the court for a capital sum or an order to pay towards any economic burden of caring for a child of the relationship. Property transfer orders are not competent. Claims of this type must be made not later than one year after the date of separation.

In deciding whether an award is justified, the court assesses:

The extent to which your client has suffered economic disadvantage in the interests of the opponent or any relevant child
Whether the opponent has derived economic advantage from contributions made by your client.

The court also has to consider the extent to which:

Economic disadvantages suffered by your client have been offset by advantages gained from contributions by the opponent
Economic advantages gained by the opponent from your client’s contributions have been offset by disadvantages suffered by the opponent in the interests of your client or child.

We need a statement from your client with:

Sufficient facts to satisfy us that the statutory definition of cohabitee is met and that the qualifying criteria regarding economic advantage/disadvantage are satisfied
The figure sought and the ability of the opponent to meet an award if made

We also require evidence of a third party statement and/or supporting documentary evidence. If unavailable you must explain why.

Provision on intestacy

Applications to pursue

Where one of a cohabiting couple dies intestate, your client can apply to the court for an order for a capital sum or transfer of property out of the net intestate estate.

Claims of this type must be made within six months of the death.

In deciding whether an award is justified, the court assesses:

Size and nature of the estate
Any benefit to be received by your client in consequence of the death
Nature and extent of any other rights against or claims on the estate

The court cannot award your client more than they would have received had they been a spouse or civil partner of the deceased.

We need a statement from your client with:

Sufficient facts to satisfy us that the statutory definition of cohabitee is met and that the couple were still cohabiting at the date of death, addressing the factors which the court has to consider.
Details of the order sought

We also require a supporting third party statement and/or supporting documentary evidence or an explanation as to why none is available.

Applications to defend

Where legal aid is sought to defend proceedings on provisions on separation or intestacy, our evidential requirements are:

Copy of the writ to be defended
Statement from your client addressing the pleadings in the writ and giving facts and circumstances that support a position that the statutory requirements for the order sought are not met.
Supporting third party statement and/or supporting documentary evidence or an explanation as to why none is available.

TOOL: find the merits guidance for your case

Gender Recognition cases