By Tim Weir, NewLaw Scotland, February 2017
In this blog we’re going to look at some of the things you should be thinking about if you’re currently living with your partner but are not married or in a civil partnership.
Ten years ago the Scottish Government updated the law on how Scottish families are treated. The change altered some of the rights couples might have had before. Because we are all creatures of habit, it’s important to get to grips with the “new” law in Scotland and sift through some of the nonsense you might’ve heard (or even said yourself).
Let’s look at some of the most popular clangers:
Nonsense: “We’ve been living together for years – we’re as good as married.”
Straight off the bat, there’s no such thing as common law marriage in Scotland. It doesn’t matter if you’ve lived with your partner for a long time – Scottish law doesn’t give you the same rights as married people or those in a registered civil partnership.
It’s a bit formal and cold, but the Scottish legal system likes to refer to you as a co-habitant if you live with someone and you aren’t married or in a civil partnership.
Simple solution: don’t assume the law makes sense in every case.
Nonsense: “Everything will sort itself out – my other half will get everything if I go first”
If you’re a co-habitant and you die without making a Will, your partner won’t be entitled to anything – even the right to keep living in the property, if you are the sole owner of it.
The only thing your partner could do in that circumstance would be to go to court within six months of your death to ask for a “financial provision” from your estate… and looking at the courts’ past decisions reveals that most of these cases really don’t go well for the surviving partner.
If you’re married or in a civil partnership you also need to make a Will. If you die without making one, the law decides who-gets-what. You might think it’ll all go to plan, but what happens if relatives come out of the woodwork? What happens if a child from a previous relationship stakes a claim on your estate? Put simply: you don’t know.
Simple solution: make a Will now, or at least get a Separation Agreement written up. Both are very easily put in place.
Nonsense: “When I get old – and if I get ill – my other half will take care of me”
This may be true to a limited extent, but unless your other half has a legal document entitling them to make your decisions for you if you become ill, your partner won’t be able to deal with your money, your house, your medical treatment, etc.
You might not think this affects you just now, but you need to get everything in place before you get any older. If you lose the ability to make your own decisions, it’s going to be very expensive and time-consuming for your family to get the law to authorise them to act for you.
Simple solution: make a Power of Attorney right now. It’s quick and entirely painless.
The law is always seen as an old fashioned and outdated system created by people who are out-of-touch with reality, but there’s a clear and present danger if you assume everything will sort itself in the long run. Don’t leave anything to chance while you have the ability to control it so easily.
Lanarkshire Carers Centre offers carers a free 20 minute session with a solicitor from NewLaw Scotland to discuss guardianship, power of attorney and will-writing. Carers can also receive legal advice on what to do after a death, as well as guidance on your assets and the cost of long-term care, even if you would just like to find out more about any of these legal services and why they are important.
To make an appointment, please click here to view the Legal Clinics page on our website