More and more couples in Scotland are choosing to live together without getting married. It’s common to hear people refer to themselves as being in a “common law marriage”, but here’s the truth: Scots law does not recognise common law marriage. Simply calling your partner your spouse does not make you legally married.
If you’re living with a partner or planning to, it’s important to understand what rights you do – and don’t – have. While cohabitees have some legal protections under the Family Law (Scotland) Act 2006, these rights are far more limited than those of married couples. This article answers the most common questions and explains how you can protect yourself.
Frequently Asked Questions
Is common law marriage recognised in Scotland?
No. Scots law does not recognise “common law marriage”. Simply referring to your partner as your spouse does not make you married in the eyes of the law. If you live together, you are considered a “cohabitee”, not a spouse.
What rights do cohabitees have under Scots law?
Cohabitees have rights under the Family Law (Scotland) Act 2006, but they are limited compared to married couples. For example:
- You may be able to make a financial claim if you can show you suffered an economic disadvantage and your partner gained an economic advantage from your contributions during the relationship.
- You do not automatically have occupancy rights to your partner’s home.
- There is a strict time limit for making claims after separation.
Do cohabitees have the same rights as married couples?
No. Married couples have far stronger legal protections. For example:
- Married spouses have automatic occupancy rights in the family home, even if they are not on the title.
- There is no time limit for making financial claims following separation.
- Cohabitees must prove they have suffered a disadvantage that has given their partner an advantage to claim financial support, whereas married couples share assets more broadly.
How long do I have to make a financial claim after separation?
You have 12 months from the date your relationship ends to raise and serve a court action. If you miss this deadline, your rights under the Act are lost. This is a key difference from divorce, where there is no time bar.
What is a Cohabitation Agreement and why should I have one?
A Cohabitation Agreement is similar to a prenuptial agreement. It sets out how assets will be divided if the relationship ends. Having an agreement in place:
- Provides clarity and certainty should your relationship breakdown.
- Reduces the risk of disputes and costly litigation.
- Protects both parties’ interests.
Can I stay in the family home if my name isn’t on the title?
Not automatically. If your partner owns the property and you are not married, you have no automatic right to remain. You may apply to court for occupancy rights for up to six months, but this is not guaranteed. Married spouses, by contrast, have automatic occupancy rights during marriage.
Why early advice matters
Cases like McBride v McInnes, where MFMac acted for the successful appellant, highlight the importance of understanding your rights. This landmark decision clarified occupancy rights for cohabitants and shows why early professional guidance is crucial.
How MFMac can help
Living together without marriage is increasingly common, but it comes with legal complexities. Knowing your rights – and taking steps to protect them – can save you stress and uncertainty. Whether you’re planning to move in together or facing a separation, MFMac’s Family Law team is here to help.
- Considering cohabitation? We recommend a Cohabitation Agreement.
- Separated from a partner? Our fixed-fee initial meeting will help you understand your options quickly.
Contact us today for expert advice and peace of mind.
