This article has been written by Fiona Turner a Family Law Partner in Weightmans’ English Offices and Noel Ferry a Family Law Partner in Weightmans’ Scottish Office.
Following the Villiers decision, reinvigorating forum shopping (Villiers v Villiers  UKSC 30), and with the implications of Brexit now a reality, family law practitioners must ensure that they are aware of the significant differences in family law between England/Wales and Scotland.
This article identifies some of the differences between the two jurisdictions when considering cohabitation law. It follows on from our earlier articles highlighting some of the main differences in divorce/dissolution law, financial proceedings and prenuptial agreements.
If parties are unmarried, and a relationship breaks down, their legal position and claims are very different depending on where the parties live and where the asset(s) in dispute are located.
Cohabitation in England and Wales
If a relationship breaks down, the legal remedies available for property disputes are limited to trust and land law solutions which are not specifically tailored to cohabiting relationships.
Claims may be brought under the Trusts of Land and Appointment of Trustees Act 1996 (TLATA or TOLATA) if a party can establish an interest in a property in which they live or own with their cohabiting partner.
These can be complex disputes. Establishing an interest in a property may be straightforward if clear documentation exists, but if there is no documentation, other evidence is needed to endeavour to establish a common intention trust.
Parents can consider applications under Schedule 1 Children Act and make claims under Schedule 1 for property and lump sums, usually to secure a home for a child and the parent with care to live in. These claims might be made in conjunction with a claim under the Trusts of Land and Appointment of Trustees Act (TLATA or TOLATA).
Cohabitation in Scotland
Scotland has specific legislation to protect cohabitants’ interests when they separate. This is governed by the Family law (Scotland) Act 2006.
The Act provides certain rights to cohabitants in respect of money, household belongings, and joint accounts or savings they may have accumulated during their relationship.
Most notably, the 2006 Act provides cohabitants with a right to make a claim on separation for a capital sum from the other party to try and redress any imbalance financially arising from contributions made by either party to the other during the relationship. For example, they may have been left financially disadvantaged as a result of the relationship or may have financially advantaged the other party.
The test is one of fairness based on the individual circumstances of the particular case itself. The courts have a wide discretion to decide what is fair but they can only award a capital sum. They cannot order a transfer of a house or other property, or a pension share as they could in a divorce case.
A cohabitation claim must be made within one year of the date of the parties ceasing to cohabit with each other. Any claim made after that will be time-barred and therefore it is important that in a cohabitation situation legal advice should be sought as quickly as possible after any separation.
In both jurisdictions, we advise clients to consider the merit of a cohabitation agreement.
Understanding the position at the outset and taking simple precautionary measures can help to prevent significant problems later on. Cohabitation agreements can regulate arrangements during cohabitation, and can provide for what happens to assets if the relationship breaks down. They can be wider in scope than a court imposed solution.
Given that claims by cohabitants in Scotland can be for substantial sums, couples contemplating cohabiting should consider whether it might be prudent to enter into a cohabitation agreement to regulate what should happen if they later separate.
The cohabitation legislation in Scotland specifically recognises that a cohabitation agreement might be entered into. Such agreements can specifically exclude future claims.
As with prenuptial agreements in Scotland, these types of agreement are becoming increasingly popular. A well drafted cohabitation agreement will provide considerable protection for any person considering, or currently, cohabitating.
A cohabitation agreement entered into, and recorded as a deed, can have contractual status, and so it is widely understood that they can be enforced provided that it complies with contractual principles. However, there are no recent cases on this.
Accordingly, a well drafted cohabitation agreement will provide considerable protection and financial certainty for any person going into a marriage in either jurisdiction.
We can provide specialised advice in both England/Wales and Scotland, and can assist in any cross border family cases which span both jurisdictions.