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Law Society of Scotland launches consultation on rights of cohabiting couples

The governing body of Scottish solicitors is asking the legal profession and interested stakeholders for their opinion on the law surrounding cohabitants' rights.

Aims of the consultation:

The objective of the consultation is to stimulate discussion and seek views in relation to reforming the rights of cohabitants.

The Family Law (Scotland) Act 2006 provides legal rights for cohabitants when cohabitation ends otherwise than by death (section 28 of the Act) and on the death of a cohabitant who dies without having made a will (section 29 of the Act).

The Law Society has confirmed they are not undertaking a full review of the law relating to cohabitation but welcome both views and personal experiences on the specified sections of the Act.

Why is the consultation needed?

Member of the Law Society of Scotland’s Trusts and Succession Sub-Committee, John Kerrigan, stated:

“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.

“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.”

The consultation ends at 10:00 am on Monday 3 December 2018. You can submit your online response to the consultation here.

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