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Relationships as seen in the eyes of the law
Date:12 NOV 2018
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Relationships have been in the news in 2018. Not only did we see two Royal weddings, but at the opposite end of the romance spectrum, in June the UK Supreme Court ruled that it was discriminatory not to allow opposite-sex couples to form civil partnerships. Dianne Millen, an associate at Morton Fraser in Edinburgh, looks at relationships as seen in the eyes of the law.               
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Although most of us won’t have our nuptials featured in Hello! magazine, or need to ask the Supreme Court to recognise our preferred form of union, everyone needs to understand the ins and outs of the different legal forms that relationships can take.

If things change – one of you dies, you split up, or even if you just decide to move abroad – it’s essential to know where you stand so you can plan ahead. For example, many people in Scotland assume that if you live with your partner long-term, your relationship automatically acquires the legal status of marriage – so-called “common law marriage”. This is not the case. If you are living with your partner, but are not married or in a civil partnership, your legal status in Scotland is that of cohabitants. While that doesn’t mean you have no rights at all, those rights are different from those of spouses.

For example, if one cohabitant dies without having made a will, the other has no automatic claim to inherit – the estate goes to the deceased’s family members, in an order of priority set out in legislation. A bereaved spouse, however, is automatically entitled to inherit a certain amount, and their claim comes first. While a bereaved cohabitant can seek a payment from the estate, this requires taking a family member to court within six months of the death – a daunting task. So while a will is essential for everyone, it’s even more important for cohabiting couples.

Similarly, if cohabitants split up, the legal mechanisms for sorting out the finances are less straightforward than the options available to spouses. If you’re going to court to make a financial claim, you have to do it within a year of splitting up (there’s no time limit for married couples). The law is uncertain in this area, so it’s often better to plan ahead by signing an agreement which sets out how you will arrange your finances, particularly if you have bought a property together.

Happily, death and separation aren’t the only things that affect relationship status. Many Scots will work or study abroad, or marry someone from another country – and many people come to Scotland for the same reasons. If you’re among them, it’s important to consider how your relationship might be viewed by the law in other countries. Being married or in a form of registered partnership in one country does not mean that this will be recognised by the law of another country. 

For example, Scots law generally recognises overseas marriages or civil partnerships subject to certain criteria, including that they are legally valid in the other country. However, Scotland currently only recognises overseas civil partnerships between same-sex couples, so a couple from a country which allows opposite-sex civil partnerships as an alternative to marriage (such as Dutch “registered partnerships”) would have the status of cohabitants in Scotland. 

Conversely, some EU countries, including Lithuania and Poland, do not recognise same-sex marriages or civil partnerships. The effects of such non-recognition may be complex in terms of immigration, inheritance, maintenance and other rights associated with relationship status. If you’re considering relocation, therefore, it’s worth seeking advice from an international family lawyer who can help you to put in place measures (such as wills and nuptial/partnership agreements) that will safeguard your family in all the countries to which you have a connection. 

This is especially important as 2019 is set to be a year of change for the laws governing relationships. New EU Regulations come into force on 29 January 2019 stipulating how the legal rules which govern the property consequences of marriages and registered partnerships after this date will be applied across participating EU states. Although the UK is not implementing the Regulations, they could affect couples from other EU countries who later divorce in Scotland, particularly couples who have signed pre-nuptial agreements. We also have the prospect of opposite-sex civil partnerships in the UK by autumn 2019, and a potential review of cohabitation law in Scotland – not to mention the as yet unknown impact of Brexit on Scottish family law.

Dianne Millen specialises in resolving the financial and child-related issues that arise when couples separate, with a particular interest in international divorce and high-value cases involving complex assets. Dianne is also a Trustee and Vice-Chair of the Board of Fife Gingerbread, a charity which supports vulnerable and disadvantaged families.

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