It is becoming more common for couples to live together without marrying. People often refer to themselves as being in a "common law marriage" when they are in a committed relationship with a partner and live together. However, "common law marriage" is not a concept recognised under Scots law. Simply referring to your partner as your spouse will not make you married in the eyes of the law.
If you are in this situation, or contemplating living with a partner, the most important thing to know is that you do have some rights under Scots law on the breakdown of the relationship, but much fewer than you would have if you were married.
Under Scots law, you are recognised as a couple in a cohabiting relationship, or a "cohabitee". If you are engaged to be married, you are a cohabitee until the wedding certificate is signed. This means you do not have the same rights as a legally married spouse if the relationship comes to an end. So, what are the main differences?
1. Financial claims – balancing advantage and disadvantage rather than sharing the assets
The rights of a cohabitee are set out in the Family Law (Scotland) Act 2006 ("the 2006 Act"). There is a basic presumption that cohabitees will retain any assets or liabilities that they brought into the relationship or hold in their sole name. Assets are 'common' when they are held in joint names only.
The 2006 Act acknowledges one party may experience a financial disadvantage from the breakdown of the relationship. The Act provides an opportunity to be 'reimbursed' for the disadvantage you have suffered. However, it is not as simple as showing you have incurred the disadvantage. To make a claim for financial support, the individual must show that their former cohabitee has gained an 'economic advantage' from the contributions they have made and that they have suffered an 'economic disadvantage' in the interests of the relationship. It is not enough to simply show your former partner has gained an advantage. You must have a corresponding disadvantage.
If both parties have suffered a disadvantage to the other’s advantage, these arguments may be offset against one another. This can ultimately reduce the financial settlement you may think you are entitled to.
2. A strict time limit for making financial claims
A key difference between cohabitation and marriage in the eyes of the law is the time bar for making a claim. A cohabitee must raise a court action and successfully serve the action on their former cohabitee within 12 months of the parties ceasing to cohabit as a couple. If you miss this deadline, your rights under the 2006 Act are extinguished. In contrast, there is no time bar on raising a court action for divorce and financial claims against your spouse.
The time limit for cohabitees has faced criticism, as it is not always a person’s first thought to raise a court action on the breakdown of their relationship. There are proposed reforms to the 2006 Act; however, the Act remains unchanged at present.
3. Different occupancy rights to your home
The right to stay in your family home can also differ between marriage and unmarried cohabitation. For example, couple A and B live together and are not married. A is the sole owner of the property. B has no property in their sole name. A and B’s relationship breaks down, and A asks B to leave the property. B has no automatic right to remain living in the property – although B may be able to apply to court to be granted a right to remain in the property for up to six months. In contrast, a married spouse would be entitled to remain in the property, as they have automatic 'occupancy rights' during marriage, even if they are not on the title to the property.
For more information, see our article on the leading McBride v McInnes appeal case, which clarifies the law in relation to occupancy rights for cohabitants, where MFMac acted for the successful appellant. This decision makes clear that it is very important for cohabitants to seek advice at an early stage.
At MFMac, we know that relationship breakdowns are hard. We are here to help make this time in your life as smooth as possible. If you and your partner decide you want to live together, we recommend entering into a Cohabitation Agreement. These agreements are similar to a prenuptial agreement. The agreement will set out clearly how your assets are to be divided should your relationship break down. Having that clarity reduces the need for lengthy and contentious litigation in the family courts.
If you are in a cohabiting relationship and have separated, our fixed-fee initial meeting can help you to be fully informed as to your options quickly.
