Lynne Mulcahy: Cohabitation concerns in lockdown



Lynne Mulcahy

Lockdown has created domestic tensions of many kinds in the home, for those in all different kinds of relationships, writes Lynne Mulcahy.

Family lawyers are concerned about a number of adverse effects of the current crisis and the impact on clients (and others), who might be experiencing relationship challenges or, even worse, the death of a partner. The situation is challenging – potentially much more so for unmarried couples, including those who made the decision to live together, then unexpectedly found themselves together 24/7. There are quite a number of “accidental cohabitants” out there right now, facing some very tough situations.

Firstly, what about cohabiting couples who have separated – or find themselves to be separated, but still needing to live under the same roof? In a number of cases, one or both of the couple may be able to make a financial claim under the Section 28 of the Family Law (Scotland) Act 2006 – but time limits apply to these claims. There is a strict time bar which expires after the parties have been separated for a year; a court action must be raised and served on the other party before the year is up. There are no exceptions to that rule, even in the current circumstances.

The Courts will still deal with such actions which are obviously deemed to be urgent. Prudent family lawyers will have already identified existing clients to whom an impending time bar applies and will be taking the necessary steps. However, many people in this situation will be unaware of these time limits - and seeking legal advice is not at the forefront of their minds as they focus on coping with the additional stresses of day-to-day lockdown life. Obviously, this stress is heightened if a relationship has broken down.

If the very worst happens and a partner dies, Section 29 of the 2006 act sets down an even shorter time bar to make a claim – of just six months, which currently looks very harsh. If a loved one dies at the moment, dealing with the grief, and the practicalities, during lockdown, is extremely difficult. You have to register the death, deal with a lockdown-rules funeral - and then find yourself back in the house, alone and grieving.

The law says someone living in a cohabiting relationship whose partner dies may have a claim on that person’s estate. The time limit on these claims is just six months from the date of death for the person to submit a court application for the claim. People may not be aware of this or will assume these rules will not apply at this time of crisis - but they do.

Decisions on deaths or separations need to be made now; people cannot think ‘I will deal with it after the lockdown’. There is no wriggle-room – inaction now will just count against them.

Finally, there are also those couples who have decided to “do lockdown” together. In retrospect, it might seem rash and impulsive to choose to lock down together when things then go wrong. Yet the early stages of a relationship are often not characterised by clear heads and lockdown love might have seemed the perfect option.

At Balfour and Manson, we often see the results of people taking life-changing decisions without taking any advice. We understand that in the first throes of love, cohabitation agreements can seem like a passion-killer - but those legal documents are crucial if things do go wrong.

For those who do not have legal agreements in place, all of the previously discussed issues can arise - such as how their finances might be impacted in the event of failed relationship. Making a decision to move in with somebody during the early stage of a relationship might just prove emotionally and financially costly - so make sure you know their rights, just in case lockdown love turns sour.

Most family lawyers have adapted their businesses to working from home. Through telephone consultations and video conferencing, they will offer advice on any of these matters and continue to work hard on behalf of their clients - including those who find themselves alone and at the mercy of tough legal time bars.

The Scottish Law Commission is currently consulting on the law surrounding cohabitation, with the consultation period extended until the end of June.Whether it will consider the time bars in place for cohabiting couples to make a claim in the event of death or separation remains to be seen. The existing laws and tight timescales are undoubtedly exacerbated in the current situation, and family lawyers will do all they can to ensure clients do not suffer as a result.

Lynne Mulcahy is a partner at Balfour and Manson in Aberdeen