Anaya Nolan
In Scotland, common-law marriages do not exist. However, cohabitation agreements can be made to outline the rights and obligations of each partner in a relationship. Cohabitation agreements are contracts that detail how property and finances will be handled by a cohabiting couple. These agreements can also outline parenting arrangements and financial obligations during and after a relationship. While cohabiting couples do not have the same legal protection as married or civilly partnered couples, they can take steps to mitigate this, such as drawing up a cohabitation contract.
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What You'll Learn
Cohabitation agreements
In Scotland, the term 'common-law' husband or wife is sometimes used but carries no legal standing. Historically, a couple could be considered married 'by cohabitation with habit and repute', but this type of irregular marriage was rarely used in practice and was abolished by the Family Law (Scotland) Act 2006, except for relationships established before 4 May 2006.
Additionally, a cohabitation agreement can provide clarity on occupancy rights, especially if one partner solely owns the property where both reside. Without a cohabitation agreement, a surviving cohabitant may have to apply to the court for occupancy rights, which are typically granted for an initial period of six months.
It is recommended that each party involved in a cohabitation agreement seeks independent legal advice to ensure that the agreement is fair and reasonable. A solicitor in Scotland can only act for one party in this situation. By doing so, there is a reduced risk of the agreement being set aside at a later date.
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Financial rights
Cohabiting couples in Scotland do not have the same legal protection as those who are married or in a civil partnership. There is no common-law marriage in Scotland, and the term 'common-law' husband or wife has no legal standing. However, cohabitants can take steps to protect their rights, such as drawing up a cohabitation contract or living together agreement.
Cohabitation agreements can outline how property and finances will be treated by a cohabiting couple. These agreements can cover property division, parenting arrangements, and financial obligations during and after the relationship. Cohabitants can also make a provision in a cohabitation agreement for what they want to happen to their property if they die. This is important because, unlike married couples, surviving cohabitants do not have automatic legal rights to their deceased partner's estate. If there is no will, the surviving cohabitant must apply to the court within six months of the date of death to be awarded a portion of the estate.
Cohabitants are not automatically entitled to continue living in a home owned or leased by their partner. However, they can apply to a court for occupancy rights, which will be granted based on the individual facts and circumstances of the case.
Cohabitants also have no direct entitlement to share in anything owned by their partner. However, they can apply to a court for a financial award if they have experienced an 'economic disadvantage' that resulted in a corresponding 'economic advantage' for their partner. The court will decide on a case-by-case basis whether to make a financial award, which may include a capital sum, payment to recognise any economic burden of childcare, or any other interim order.
Unlike married couples, cohabitants do not have automatic rights to their partner's pension. However, if their partner dies, they may receive some pension and/or death-in-service benefits if they have been named as a beneficiary under the scheme. Some schemes may also make a financial award to the surviving cohabitant, especially if there are children involved.
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Property rights
Cohabiting couples in Scotland do not have the same legal rights as married couples. There is no common-law marriage in Scotland, and cohabiting does not create any automatic legal rights, regardless of how long a couple has been living together.
Cohabiting couples have no automatic occupancy rights. If a couple separates, the cohabitant who does not own the property has no right to continue living there. However, they can apply to the court for occupancy rights, which are usually granted for six months at a time. If the cohabitant experiences domestic abuse, they can apply to the court for an order to exclude the abuser from the property, even if the abuser owns it.
Cohabiting couples also do not have the same property rights as married couples. If one cohabitant owns the house, the other has no right to claim it if they separate. However, they can seek to claim a capital sum to account for any financial or other contributions they made towards the property. If the couple jointly owns the house, the title deeds will determine how much each individual is entitled to if the property is sold. Usually, the title deeds provide that a couple owns the property in equal shares, but this can be unfair if one person contributed significantly more than the other. In this case, the couple can negotiate how the proceeds should be divided to account for the difference in contributions.
Cohabiting couples can create a cohabitation agreement to outline how property and finances will be treated. This is similar to a prenuptial agreement and can help cover property ownership and separation of assets. Cohabitants can also put a will in place to ensure their assets are distributed according to their wishes. If there is no will, the surviving cohabitant can apply to a court for a portion of their deceased partner's estate, but this process may be long and arduous.
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Parental rights
Common-law marriage does not exist in Scotland. There was a type of irregular marriage called 'marriage by cohabitation with habit and repute' which could apply to couples who lived together and were thought to be married. This was rarely used in practice and was abolished by the Family Law (Scotland) Act 2006. Only irregular marriages established before 4 May 2006 are recognised.
Cohabiting couples do not have the same legal rights as married couples. This means that cohabiting does not create any automatic legal rights, regardless of how long a couple has been living together. For example, cohabiting couples do not have the same property rights as married couples. There is no entitlement to financial support in the event of a breakup and no automatic entitlement to inherit a deceased partner's assets. However, under the rules of intestacy for Scotland, unmarried partners can apply to the courts for a share of their deceased partner's estate.
Cohabiting couples can take steps to ensure their rights are protected. For example, they can create a cohabitation agreement, which is similar to a prenuptial agreement, to outline their rights and responsibilities towards each other in case of a separation. They can also make a will to ensure their assets are inherited according to their wishes.
In terms of parental rights, Scots family law regulates certain aspects of adult relationships and the rights and obligations with respect to children. The Children (Scotland) Act 1995 introduced four parental responsibilities:
- To safeguard and promote the child's health, development and welfare.
- To provide, in a manner appropriate to the stage of development of the child: direction and guidance.
- If the child is not living with the parent, to maintain personal relations and direct contact with the child on a regular basis.
- To act as the child's legal representative.
The law dealing with children emphasises the importance of doing what is best for the interests of the child's welfare rather than the parents. Most parental responsibilities are extinguished when the child turns 16 years old, except for the obligation to provide guidance, which ends when the child turns 18 years old. The birth mother of the child, even in cases of surrogacy, automatically acquires parental responsibilities and rights for her child. Only a father who is married to the mother at the time of conception or subsequently before the birth, automatically acquires parental responsibilities and rights. A non-marital father will not automatically acquire the responsibilities and rights even if he is the child's biological father. From 4 May 2006, with the introduction of the Family Law (Scotland) Act 2006, a father named on the child's birth certificate also automatically acquires parental responsibilities and rights.
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Marriage by cohabitation with habit and repute
In Scotland, there is no such thing as common-law marriage. However, there was a type of irregular marriage called "marriage by cohabitation with habit and repute" that was abolished by the Family Law (Scotland) Act 2006. This form of marriage could apply to couples in special circumstances until 2006, and irregular marriages established before 4 May 2006 are still recognised.
To qualify as a marriage by cohabitation with habit and repute, the couple must have been free to marry each other and generally recognised as a married couple by their community. Their friends and neighbours, for example, must have regarded them as a married couple. However, it is not enough for the couple to have lived together for several years. This form of marriage can be difficult to prove, and a solicitor should be consulted for advice on how to do so.
Cohabiting couples in Scotland do not have the same legal protections as married or civilly partnered couples. They do not have automatic rights to each other's estates and must apply to the court for financial provision within strict time limits. Cohabitants also do not have occupancy rights to continue living in a home owned or leased by their partner, although special rules apply in cases of domestic abuse. To mitigate these differences in legal protections, cohabiting couples can draw up a cohabitation contract or living together agreement outlining their rights and obligations to each other.
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Frequently asked questions
No, common-law marriage does not exist in Scotland.
Common-law marriage refers to the idea that a couple will have established a form of marriage after living together for a period of time.
Cohabitants are not automatically entitled to the same rights as married/civil partners. For example, cohabitants do not have the same rights to property, finances, and pensions as married couples.
A cohabitation agreement is a contract that outlines how property and finances will be treated by a cohabiting couple.
An irregular marriage is a type of marriage that does not meet the usual conditions for a legitimate marriage, for example, if there was no ceremony. Common-law marriage refers to a couple who are not married but live together.
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