Gavin Howe
Common-law marriage, also known as non-ceremonial marriage, informal marriage, or marriage by habit and repute, is a marriage that occurs when two people live together and present themselves as a married couple without legally formalising their relationship. While common-law marriage is recognised in some countries and US states, it does not exist in Scotland. In the past, Scotland recognised a form of irregular marriage called 'marriage by cohabitation with habit and repute', which was abolished in 2006 under the Family Law (Scotland) Act 2006. Today, cohabitating couples in Scotland do not have the same legal rights as married couples, and must set up a cohabitation agreement or a will to protect their rights.
| Characteristics | Values |
|---|---|
| Common law marriage in Scotland | Does not exist |
| Common law marriage | Occurs when two people cohabitate and present themselves as a married couple or are in a civil partnership without being formally married |
| Common misconceptions | Cohabitating couples are considered married, living together for years constitutes a legal marriage, referring to each other as 'husband' and 'wife' constitutes a legal marriage |
| Legal rights and protections in Scotland | Cohabitants have legal rights, cohabitation agreements are popular with unmarried couples, a surviving partner may not automatically inherit their partner's assets if they die without leaving a will |
| Marriage by "cohabitation with habit and repute" | Abolished in 2006 under the Family Law (Scotland) Act 2006, previously available to couples who had lived together and were thought to be married |
| Irregular marriage | Scotland recognised irregular marriages by assertion before a witness until 1939, there were three forms of "irregular marriage" under early modern Scots law |
| Marriage in Scotland | Recognised in the form of both civil and religious unions, anyone over the age of 21 can apply to the Registrar General for authorisation to conduct a marriage, civil partnerships became available to same-sex couples in 2005 |
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What You'll Learn
Common-law marriage is a colloquialism for cohabiting couples
In Scotland, common-law marriage does not exist. There are many misconceptions about cohabiting couples, including the belief that living together for years or referring to each other as 'husband' and 'wife' constitutes a legal marriage. However, this is not the case. Cohabiting couples in Scotland do not have the same legal rights as married couples. For instance, they do not have the same property rights, there is no entitlement to financial support in the event of a breakup, and there is no automatic entitlement to inherit a deceased partner's assets unless the surviving partner is mentioned in a will.
To protect their rights, cohabiting couples in Scotland can set up a cohabitation agreement or a will. A cohabitation agreement is similar to a prenuptial agreement and can cover property ownership and separation of assets. It can also provide protections similar to marriage, such as equal shares of assets or access to pensions.
Historically, Scotland was the last European jurisdiction to abolish old-style common-law marriage. In the eighteenth and nineteenth centuries, marriage laws in Scotland encouraged the practice of couples wishing to marry eloping from England to Scotland, often to Gretna Green, to avoid restrictions or procedures imposed by their home jurisdictions. In 2006, Scotland abolished "marriage by cohabitation with habit and repute", the last form of irregular marriage that could still be contracted in Scotland, under the Family Law (Scotland) Act 2006.
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Scotland abolished common-law marriage in 2006
Common-law marriage, also known as non-ceremonial marriage, informal marriage, or marriage by habit and repute, is a marriage that results from the couple's agreement to consider themselves married, followed by cohabitation, without a statutorily defined process. In other words, it is a colloquialism sometimes used to describe a couple that lives together but has not formalized their relationship by getting married or entering into a civil partnership.
In Scotland, common-law marriage does not exist. There are many misconceptions about cohabiting couples, including the belief that living together for years or referring to each other as 'husband' and 'wife' constitutes a legal marriage. However, this is not the case. In 2006, "marriage by cohabitation with habit and repute", the last form of irregular marriage that could be contracted in Scotland, was abolished by the Family Law (Scotland) Act 2006. This law change meant that Scotland was no longer the only European jurisdiction that had not totally abolished the old-style common-law marriage.
Prior to this law change, for a couple to be considered married by habit and repute, they had to have lived together continuously for more than 20 days and been generally regarded as a married couple. Their friends and neighbors, for example, must have known them as Mr. and Mrs., or they must have held themselves out as such. This form of marriage was difficult to prove, and there was no formal recognition with a state or religious registry.
The history of marriage in Scotland is unique due to its past as an independent country. As a result, marriage laws developed differently, with Scotland retaining its own legal system and marriage traditions. For example, couples from England and Wales would often elope to Scotland, particularly to border towns like Gretna Green, to marry without parental consent, as Scotland did not require this until 1929. Additionally, Scotland recognized irregular marriages by assertion before a witness until 1939.
Today, there are still legal rights for cohabitants in Scotland, and cohabitation agreements can be set up to protect oneself in the event of a separation or death of a partner. These agreements are similar to prenuptial agreements and can help cover property ownership and separation of assets. A will is another important legal document for cohabiting couples to consider.
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Cohabitants in Scotland have legal rights
Cohabitants in Scotland do have some legal rights, despite common law marriage not being recognised in the country. The Family Law (Scotland) Act 2006 defines a cohabitant as:
> Either member of a couple consisting of: A man or woman who are (or were) living together as if they were husband and wife; or · Two persons of the same sex who are (or were) living together as if they were civil partners.
Cohabitants do not have the same legal rights as married couples or civil partners. For example, cohabitants do not have an automatic right to occupy the family home if it is owned or leased by their former partner. However, they can apply to the court for a grant of occupancy rights for a period of up to six months, which can be extended.
Cohabitants can also apply to the court for financial provision if their relationship breaks down or if their partner dies without a will. The court will decide on the type and amount of the award, but it cannot be more than the cohabitant would have been entitled to as a spouse or civil partner. The law currently only allows the claim to be in the form of a cash lump sum payable in full or in instalments. It is possible that Scottish Parliament may review this policy and consider allowing additional 'payments', such as property transfer or pension sharing.
There is a presumption that each cohabitant has a right to an equal share in household items acquired during cohabitation, unless the item was a gift or inherited from a third party. Money derived from a joint allowance or property acquired from this money will be treated as belonging to each cohabitant equally, unless there is a contrary agreement in place.
To protect their rights, cohabitants can set up a cohabitation agreement, which is similar to a prenuptial agreement and can cover property ownership and separation of assets.
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Misconceptions about common-law marriage in Scotland
In Scotland, common law marriage does not exist. However, there are several misconceptions about cohabitating couples, including the belief that living together for years or referring to each other as 'husband' and 'wife' constitutes a legal marriage. Here are some of the common misconceptions about common-law marriage in Scotland:
Misconception 1: Cohabiting couples are considered legally married
This is a common misunderstanding. Simply living together and presenting as a married couple does not constitute a legal marriage in Scotland. Common-law marriage is a colloquial term used to describe couples living together without formalising their relationship through marriage or a civil partnership.
Misconception 2: Living together for an extended period grants the same rights as a married couple
Many people mistakenly believe that if they live with their partner for a long time, they will gain the same legal rights as a married couple. However, this is not the case in Scotland. Cohabiting couples do not have the same rights as married couples, and creating a legal agreement, such as a cohabitation contract, is essential to protect their rights.
Misconception 3: Referring to each other as 'husband' or 'wife' establishes a common-law marriage
Calling each other 'husband' or 'wife' and considering themselves married does not make a couple legally married in Scotland. The term 'common-law' husband or wife is often used, but it has no legal standing. A couple must go through a statutorily defined process, such as a marriage ceremony, to be legally recognised as married.
Misconception 4: Common-law marriage provides automatic rights upon separation
Cohabiting couples in Scotland have no automatic rights if they separate. If a cohabiting relationship ends, there are no inherent rights regarding property ownership or separation of assets. To protect themselves, couples should set up a cohabitation agreement or a will to outline their rights and obligations.
Historical Context:
It is worth noting that Scotland did have a form of ''irregular' marriage called 'cohabitation with habit and repute', which was abolished in 2006. This allowed couples to establish a form of common-law marriage through an application to the court, but it was rarely used and had specific conditions.
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Marriage in Scotland is recognised in civil and religious forms
Scotland's history as an independent country has resulted in marriage laws that differ from those in other parts of the United Kingdom. The Marriage (Scotland) Act 1939 and the Family Law (Scotland) Act 2006 abolished various forms of irregular marriage, including "marriage by cohabitation with habit and repute", which was the last form of common-law marriage recognised in Scotland.
Today, marriage in Scotland is legally recognised through civil or religious ceremonies conducted by authorised registrars or celebrants. Civil marriages are performed by state registrars, while religious marriages are conducted by authorised celebrants, typically ministers of religion. Humanist celebrants are also legally approved to perform marriage ceremonies, and these are considered non-religious civil marriages. Same-sex couples can marry in Scotland, with the option of a religious or belief ceremony if the relevant body agrees to conduct such marriages.
To marry in Scotland, couples must meet certain legal requirements, including submitting a Marriage Notice form to the registrar in the district of their marriage between three and one month before the wedding. Non-UK citizens wishing to marry in Scotland may need a visa and additional documentation.
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Frequently asked questions
No, common law marriage does not exist in Scotland. Common law marriage is a colloquialism sometimes used to describe a couple that lives together but has not formalized their relationship by getting married or entering into a civil partnership.
Common law marriage, also known as non-ceremonial marriage, is a marriage that results from the parties' agreement to consider themselves married and cohabitate, rather than going through a statutorily defined process.
Scotland was the last European jurisdiction to abolish common-law marriage in 2006, through the Family Law (Scotland) Act 2006. Before this, Scotland had an outdated form of ''irregular' marriage called 'cohabitation with habit and repute'.
Cohabiting couples in Scotland do not have the same legal rights as married couples. Cohabitants can set up a cohabitation agreement or a will to protect their rights in the event of separation or death.
