Scullion News & Resources
By Nicola Buchanan – Senior Associate Director
Many clients come to us for advice when their cohabitation relationship breaks down, where there has not been any domestic violence but simply when they have grown apart. It is important to discuss their options at that time and decide together what approach to take in order to secure the best outcome for them.
What we commonly see is they have been living together in a home which is owned by only one of them. In those circumstances it is imperative that they take action before the cohabitation breaks down if they want to stay in the home after they separate. This is a particular quirk of the terms of Section 18(1) of the Matrimonial Home (Family Protection) (Scotland) Act 1981.
Occupancy rights can only be granted if a cohabiting couple are living together as a cohabiting couple. This applies to a couple who are living as a man and wife or same sex couples. Therefore, a court action must be raised by the party whose name is not on the title deed for the home seeking occupancy rights to stay in the home after separation.
What If the Relationship Has Already Ended?
If the cohabitation has already ended, even if they are still staying in the home, they cannot raise a court action to secure rights to stay in the home.
They have no legal right to stay in the home without court orders.
The court will decide whether to grant this based on various factors. They can grant the application for a period of up to 6 months in the first instance and then can extend if asked to do so later.
Recently we were successful in opposing an action raised by a former cohabitee for occupancy rights after the cohabitation had ended. The court not only refused to grant the order but also awarded that she pays our client’s costs for raising an incompetent court action.
Even if you have separated already, we can however negotiate with the other side when to move out.
The Scottish Law Commission is currently reviewing the law on cohabitation with a draft bill having been prepared so we will see if they make any changes to this position.
In the meantime, cohabitants are in a vulnerable position and need to seek early reliable legal advice to protect themselves if their relationship were to break down.
Our top ranked and expert Family Law team at Scullion Law can help you
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