Cohabitation Rights and Cohabitation Agreements in Scotland

It is an exciting moment when you move in with your partner, and nowadays more and more people are choosing to do this rather than to get married or enter a civil partnership. But, without such legal safeguards in place, we recommend cohabitation agreements for couples living together to avoid potential upsets.

cohabitation agreements solicitors
Claire Christie - Legal Director of Family Law

Claire Christie

Head of Family Law

haddington

[email protected]
Sophie Greig — Family Law Solicitor

Sophie Greig

Solicitor

haddington

[email protected]
Garden Stirling Burnet Staff

Rebecca Duncan

Business Support Administrator

haddington

[email protected]
Garden Stirling Burnet Staff

Lesley Holburn

Secretary/Legal Executive

haddington

[email protected]

With no such concept in Scotland or the UK as ‘common law marriage’ it is critical however to understand your legal rights as a cohabiting partner.

This is especially important with the introduction of the Family Law (Scotland) Act 2006 which gives cohabitants limited rights to make financial claims against each other in the unfortunate event of separation or death where there is no will in place.

At Garden Stirling Burnet, we can advise you on all the legal aspects of living together. Our expertise and sensitive approach extend to helping you formalise a cohabitation agreement, along with clearly explaining your rights and obligations.

What is cohabitation?

When couples live together either of the same or opposite sex but are not married or in a civil partnership, this is known as cohabiting.

There is no fixed period in which couples can be recognised as cohabiting, however, the longer a relationship lasts the more likely they will be recognised as cohabitants.

What are my legal rights if cohabiting?

In Scotland, legal rights are not the same for cohabitants as they are for those who are married or in a civil partnership.

For example, married couples will have automatic rights to their spouse’s estate upon death or should they file for a divorce.

Cohabitants do not have automatic rights and must make an application to the court for a claim in both instances. These claims must be made within a strict timeline, six months upon the death of a partner or 12 months following separation. If you do not raise a claim during this time frame, you will lose your right to do so. This could be further complicated if you have children together.

Section 25 of The Family Law (Scotland) Act 2006 guides the court in assessing cohabitation by looking at:

  • Length of time the parties have been living together
  • Nature of the relationship during this time
  • Nature and extent of any financial arrangements during this period

It is vital to ensure that as part of a cohabiting relationship, your rights are not overlooked, particularly at a time of great emotion and stress. We are here to help ensure that you are aware of your rights and are fully informed should you wish to make a claim.

Cohabitation Agreements

In the unfortunate event of a separation or the death of a partner with no will in place (will intestate), managing any financial claims as a cohabitant can prove complex, upsetting, and expensive. This is, in part, due to the broad discretion given to courts and lawyers, as well as the strict timescales.

If you are thinking of living with your partner, or are already doing so, it is important to consider entering into a cohabitation or pre-cohabitation agreement. Somewhat similar to a prenuptial agreement, this legal contract will protect your assets, outline your day-to-day financial arrangements, and pre-empt any conflict around a separation further down the line.

Whilst not very romantic, these agreements, created at a time when the relationship is amicable, do eliminate uncertainty and help to prevent any difficulties and upset in the long term.

Why should I have a cohabitation agreement?

Entering into a cohabitation agreement, either before you move in together or even when you have lived together for a while, will help you to agree and record how you will organise your finances. It will even allow you to “opt-out” of the legal provisions should separation or death occur.

For example, if you are buying a property together but putting in unequal amounts to finance the purchase, a cohabitation agreement will help protect your investment and record what will happen to the property should you separate.

At Garden Stirling Burnet, we are highly adept at tailoring these agreements to your unique needs, providing not only trusted legal advice regarding your rights but also the peace of mind that comes with proactive and fair planning.

Contact Garden Stirling Burnet to set up a cohabitation agreement

Don’t let uncertainty affect your relationship, contact our friendly team today to gain a comprehensive understanding of your cohabitation rights and explore the benefits of a tailored cohabitation agreement.


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