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Society launches debate on reforms to cohabitant laws

6 November 2018

Views on the law providing rights for cohabitants are being invited from the legal profession and interested stakeholders by the Law Society of Scotland.

The Society has opened a consultation which aims to stimulate discussion on possible reforms to the law, including the itme limits for bringing financial claims and whether a claim could be permitted in the face of provisions in a will.

Under the Family Law (Scotland) Act 2006 cohabitants have certain rights when cohabitation ends otherwise than by death (s 28) and on the death of a cohabitant who dies intestate and is survived by a cohabitee (s 29). The consultation is not a full review of the law relating to cohabitation but welcomes views and experiences on both sections of the Act.

John Kerrigan of the Society's Trusts & Succession Subcommittee commented: "As the law presently stands, it is possible for the claim of a ‘deserving cohabitee’ to be time barred. We will explore whether the common law claim of unjustified enrichment should remain available to parties who have separated where the one-year period for a claim has been missed.

"We will also explore linking the time limit for a claim following the death of a cohabitant to the grant of confirmation. This would more appropriately reflect the time taken to have executors appointed, given that this will be done prior to a grant of confirmation being made.

"In addition, we will consider the possibility of suggesting an extension to the right to claim to estates where the deceased died with a will."

Click here to access the consultation. The deadline for responses is 10am on Monday 3 December 2018.

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