In recent proposals from the Scottish Law Commission, plans have been put forward to give people who have ‘relationships’ with married lovers a share of their wealth after death.
How families of the deceased but married philanderer will react is anyone’s guess … (now that's going to cause a few hair pulling battles in solicitor’s offices ! –Ed)
Published Date: 15 April 2009
By Tanya Thompson
MISTRESSES could be able to claim a share of their married lovers' wealth under radical plans to change Scotland's inheritance laws.
The proposal is being considered by the Scottish Law Commission, amid concern that people who have relationships with married partners are unfairly discriminated against when their partner dies.
The report, published today, recommends that cohabitants should be entitled to a percentage of what they would have received if they had been the deceased's spouse or civil partner.
The amount of money they get will be determined by considering the length and quality of the cohabitant's relationship with the deceased.
Professor Joe Thomson, a member of the Scottish Law Commission leading the review, said the changes would help simplify the current law – which came into force in 1964 – reflecting changing family structures in contemporary Scotland. He said: "We're saying if a woman lives with a man for 40 years and has six children, she should be treated as if she was married.
"But if she has only lived with them for two years and had no children, the percentage she gets would be much smaller – perhaps 20 per cent of the estate."
As the law stands, the whole of the estate tends to be awarded to the wife because her succession rights have to be satisfied before a mistress or cohabitant can make a claim. Critics say the status quo is unfair, as society has evolved and attitudes to married life and adultery have changed.
"We are suggesting the estate is divided into two – the wife gets half and the cohabitant gets a proportion of the other half," said the professor.
"At the moment, the whole of the estate may go to the wife. Unless the estate is very big, the surviving spouse will exhaust the estate."
Last night family solicitors described the plans as controversial, predicting an angry backlash from church groups who may regard the changes as an attack on traditional family values.
Lawyer Martin Monaghan said that, under the current legislation, the wife is entitled to the lion's share of the estate even though she is no longer in a relationship and may have been estranged from the husband for many years.
He said: "These are big changes. As the law stands, the wife is the priority. There's no doubt about that.
"The idea of the family ethos coming first ... some will say is being dissipated by these proposals. It will be inflammatory for church groups."
But Mr Monaghan said he believed it was unfair for a cohabitant to be deprived of a share of the spoils because of the existence of a spouse.
The changes are being considered because of the growing trend for married couples to separate without seeking a divorce – because children are involved, for religious or financial reasons or because either party is holding out hope of a reconciliation.
"At the moment, a lot of people think a cohabitant has the right of succession," added Prof Thomson.
"People have this notion of common-law wife, which is a nonsense in Scots law.
"What we're proposing is that even if there is a will, a cohabitant can get a proportion of the legal share she would have been entitled to if she had been married."
Another contentious element of the report relates to family inheritance. Under Scots law, children cannot be disinherited in a person's will, but one proposal suggests that adult children should have no legal rights and the deceased should have the option of leaving his offspring with nothing.
Today's report builds on a number of recommendations first published in 1990 but which were not implemented by successive governments. The measures went out to consultation 18 months ago and are due to go before government ministers.