Options for unmarried Scottish expats who separate while living abroad
Written by John Fotheringham on 18 December 2017
People living together without being married is nothing new, but it's a growing phenomenon which the law is only just beginning to catch up with.
Some countries have statutory systems for dealing with the economic fallout when an unmarried couple separate, but most, including most of the UK, don't. Can you use the law in one of these countries even if you don't live there?
The Scottish statutory system of cohabitation was the first (and is so far the only) one in the UK but that doesn't mean that you have to have lived in Scotland for the rules to apply. The Scottish rules can be invoked on the basis of the domicile of either party. That's a technical legal concept which is not the same as Nationality nor even Habitual Residence.
Very broadly, Domicile is your personal law. If you're born in Scotland then you start off with a Scots Domicile. If you then move abroad to, say, California then that move of itself does not change the domicile unless you decide that California (or anywhere else) is going to be your home permanently.
If you say that despite the charms of the Napa Valley, The Golden Gate and Yosemite you intend eventually to return to live out your last years in good old Lochgelly then you are still a Domiciled Scot and Scots Law can still apply to your cohabitation. If instead you find yourself so hooked by the wine, the easy-going natives and the sunshine (not Lochgelly this time) that you decide to stay in California and to retire there then your Domicile of Origin will change to a new USA Domicile of Choice.
This is important for cohabitants because a claim can be made in Scotland if either party is a Domiciled Scot. So Mary-Lou who has lived with Jock in San Bernardino for 20 years may be able to raise an action against him in the Scottish courts, using Scots Law when the cohabitation ends, whether it ends by death or otherwise.
The claim itself is not as strong as a claim in divorce but it can be well worth making for one of the parties. It can also be well worth excluding for the other party. Either one will need detailed legal advice since the rules are not particularly intuitive.
The point is that if you have been cohabiting with someone with a Scottish Domicile then even if you have never lived with that fortunate Scot in his homeland, you may have a valuable claim against him or against his intestate estate.