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Succession Rights for Cohabitants

Document Cited authorities 2 Cited in Related
Vincent
Pages138-143
DOI10.3366/elr.2020.0611
Date01 January 2020
Published date01 January 2020
FROM STATUS TO SUBSTANCE

During the past decades, the number of couples living together without being married has increased continuously across Europe, and this trend is set to continue.1 The most recent statistics in the UK show that cohabiting couple families are on the rise and are now the second largest family type at 3.4 million (17.9%) after married couples and civil partners, whose share has declined from 69.1% to 67.1% of all couples in the UK since 2008. Cohabiting couple families are also the fastest growing family type in the last decade and they are those with the largest percentage increase of families with dependent children at 23.9% between 2008 and 2018, rising to 1.3 million in 2018.2

In Scotland, the Family Law (Scotland) Act 2006 updated the law in order to reflect this reality and thus introduced a set of provisions3 that grant cohabitants some protection where one of the partners dies or where the relationship is ended for other reasons. However, the legislature is very clear that cohabitants do not enjoy the same rights as spouses. In case one of the cohabitants dies without a will, the court may under certain conditions, and upon application within six months from the date of death, make an award to the surviving cohabitant.4 This provision has been the subject of much criticisim and for a number of reasons, including because the court is not given any meaningful guidance as to the purpose and the amount of the award, but also because of a potential conflict of interest between the applicant and the deceased's children, especially where the only asset left is the family home.5 Mainly due to these shortcomings, 70% of the respondents to the Scottish Consultation on Succession Law of 2015 were in favour of repealing section 29 of the Family Law (Scotland) Act 2006 and replacing it with an entirely new provision.6

From a comparative perspective, only few other European legal systems have granted intestacy rights to cohabitants.7 For a variety of practical, political, ideological and religious reasons, most jurisdictions have continued to rely on status and have therefore completely disregarded factual relationships.8 It is usually claimed that there is no need to protect such relationships since the deceased is free to make a will in favour of those with whom he had a close non-status-relationship, such as cohabitants, step children, friends etc. Yet, this argument is questionable. For instance, surveys carried out in England, Wales and Scotland show that almost half of cohabiting couples mistakently believe that they have a “common law marriage” and therefore enjoy the same rights as married couples.9 Moreover, one must not forget that cohabitants are not exempted from inheritance tax, so that there may be also financial disincentives for making a will in their favour.10 Also, considering that not all people make wills and that...

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