Couples who move in together and don’t legally formalise their relationship through marriage or civil partnership are granted rights in Scotland that offer protections if the relationship breaks down or one partner dies.
While they are not as extensive as those granted to married couples or civil partners, they can cause issues if the relationship comes to an end and matters such as property, finances or child arrangements need to be organised. Cohabitation agreements offer a way of avoiding these, allowing a couple to regulate and maintain control over their affairs.
A cohabitation agreement is a legally binding document that sets out what should happen should a relationship break down. It can also regulate matters that arise during the relationship. Exactly what is covered and the complexity of a cohabitation agreement therefore depends on the couple’s particular circumstances.
At MacRoberts, our family law solicitors are some of the best in Scotland. Working within Scotland’s largest independent law firm, we use specialist family law knowledge and experience with cross-disciplinary expertise to find the best possible solution for our clients, whether they’re based in the UK or abroad. Here we provide an overview of the rights of cohabiting couples in Scotland and cohabitation agreements. For more information and to arrange an initial free 15-minute consultation, please contact us.
Cohabitants’ Rights – Cohabitation Lawyers Scotland
Despite being a commonly held belief, there is no such thing as ‘common law marriage’ in Scotland. Cohabiting couples, no matter how long they have lived together, do not have the same rights as married couples or those in a civil partnership. To reflect the fact that adults should be free to live together as a couple without the legal obligations that come with marriage or civil partnership, cohabitants’ rights are of a much narrower scope and subject to strict time limits, but they can still be significant. When a relationship comes to an end, a cohabitant can rely on certain rights to claim a capital sum against their former partner.
The rights of cohabitants when a relationship comes to an end, which must be claimed by making an application to the court within a year from the date of the relationship breaking down, include:
- financial provision if one partner was financially disadvantaged as a result of cohabitation (such as selling property or giving up work to care for children or financing improvement works to their partner’s property);
- an equal share in household goods acquired during cohabitation (excluding gifted and inherited assets);
- rights in money allocated for joint household expenses and any property acquired out of that money (excluding the sole or main residence they lived in together); and,
- an assumption that parents who are cohabitants will share the cost of caring for any of the children they have had together.
When deciding whether an award should be granted, and if so, how much, the court takes a broad approach aimed at correcting any clear and quantifiable economic imbalance that may have resulted from the cohabitation. When making that assessment, it will take into consideration how long the couple lived together, the nature of their relationship and the extent to which they financially supported each other. It isn’t necessary for an in-depth analysis to be carried out. Instead, the court will look at the financial positions of the parties at the beginning and then the end of cohabitation.
If a cohabiting couple wants to come to a different agreement that better protects their interests, reflects their circumstances and provides greater certainty, it is possible to ‘contract out’ of these rights by drawing up a cohabitation agreement.
Cohabitation Agreements in Scotland
Although cohabitation agreements must be tailored to the individual needs of the couple, they often include clauses covering:
- the regulation of day-to-day financial matters
- clarification of property ownership
- arrangements in relation to children
- the division of assets, and other matters that need to be organised, in the event of separation
It’s crucial that each party to a cohabitation agreement gets independent legal advice to ensure that their interests are being protected and to strengthen the validity of the document. While the Scottish courts are reluctant to set aside cohabitation agreements, if there is any evidence of undue influence or manifest unfairness then the agreement may be reduced. Our specialist family law solicitors ensure all cohabitation agreements negotiated and drafted for our clients are as comprehensive, and watertight, as possible. Our aim is to provide peace of mind, helping our clients to feel more secure.
MacRoberts – Trusted Family Lawyers in Glasgow, Edinburgh, Dundee & Scotland
Drawing on over 45 years combined knowledge and experience, within one of Scotland’s most prestigious independent law firms, the family law team at MacRoberts are leaders in their field.
We recognise that most of our clients want to maintain as much as possible, in terms of their financial security. Using the vast resources and cross-departmental expertise at our disposal, we pride ourselves on finding and implementing innovative, practical solutions for all our clients, whether they are based in Scotland or abroad.
We also understand that expense can be an additional concern, which is why we always aim to keep costs down and are as transparent and upfront as possible about the fees involved. For a free, initial 15-minute consultation, whatever family law matter you may be facing, please contact us.