Your Rights as a Cohabiting Partner in Scotland

There is no such thing as a “common law marriage” in Scotland, and believing otherwise has cost people dearly. What Scotland does have is a limited set of statutory rights for cohabitants — more than England and Wales offer, but far short of the rights of a married couple, and hedged by a deadline so short that many valid claims are lost before people even realise they had one.

The law

Cohabitants’ rights on separation come from the Family Law (Scotland) Act 2006, which for the first time gave unmarried couples in Scotland certain financial rights when they separate. With well over a hundred thousand cohabiting couples in Scotland, this is a widely relevant area — yet awareness of it remains strikingly low.

What you can (and cannot) claim on separation

Under section 28 of the 2006 Act, on separation a former cohabitant can apply to the court for a capital sum. The purpose is to redress imbalances arising from the relationship — for instance, where one partner has been left economically disadvantaged, or the other economically advantaged, as a result of contributions made during the relationship (including looking after the home or children). The test is one of fairness on the facts of the case, and the court has wide discretion.

But the limits are significant, and quite different from divorce:

• The court can generally award only a capital sum (and, in some cases, sums relating to the economic burden of caring for a child).
• The court cannot order the transfer of property from one cohabitant to the other.
• The court cannot make a pension sharing order between cohabitants.
• There is no concept of “matrimonial property” to be divided — the starting point is not equal sharing of anything.

In short, cohabitants’ rights are about compensating unfairness, not dividing a pot. This is a much weaker position than a spouse enjoys.

The one-year deadline that catches people out

This is the point that matters more than any other. A claim for financial provision on separation as a cohabitant must be made within one year of the date the couple ceased to cohabit. Miss that deadline and the claim is time-barred — gone, regardless of how strong it was. One year is very little time when you are dealing with the upheaval of a separation, which is exactly why specialist advice should be taken as quickly as possible after a cohabiting relationship ends. Do not wait.

If a cohabiting partner dies

The 2006 Act also gives a surviving cohabitant a possible claim where their partner dies without a will (intestate). The survivor can apply to the court for a discretionary award from the estate, which in some cases can be as much as a spouse might have received on intestacy. But again the limits are severe:

• The time limit is even shorter — six months from the date of death.
• If the partner left a will, the cohabitant has no claim under this provision at all, and must hope to have been provided for in the will.

This makes making a will, and reviewing it, especially important for cohabiting couples.

Because the time limits are so unforgiving, prompt advice is essential. Our city guides profile firms experienced in cohabitation claims across Scotland.

Disclaimer: This article is general information about the law in Scotland and is not legal advice. It may not reflect the most recent changes in the law. Always consult a qualified solicitor about your own circumstances.