Does common law marriage exist in Scotland? 

In Scotland, the concept of “common law marriage” – where a couple is considered legally married simply by living together – does not exist. This misconception can cause confusion for many cohabiting couples who believe that by living together, they may have the same rights as married couples. However, while long-term cohabitation does grant certain legal protections under Scottish law, it does not equate to marriage and lacks many of the rights and protections that marriage provides.

What is common law marriage?

Common law marriage refers to an informal marital status that, in some jurisdictions, is recognised after a couple has cohabited for a significant period. In these places, couples living together as though married may gain legal recognition similar to formally married couples. However, this is not the case in Scotland. Simply living together does not create a legally recognised marriage, and “common law marriage” is a misconception under Scottish law.

Historically, there was a similar but distinct practice in Scotland called “irregular marriage,” where a couple could be considered married if they lived together and were recognised by their community as husband and wife, known as “marriage by cohabitation with habit and repute.” However, the Family Law (Scotland) Act 2006 abolished these informal marriages, requiring all marriages to be formalised and registered. Since then, only legally registered marriages are recognised.

Rights of cohabiting couples in Scotland

Although common law marriage does not exist in Scotland, cohabiting couples do have some limited legal rights thanks to the Family Law (Scotland) Act 2006. This Act provides cohabiting couples with certain protections upon separation or the death of a partner. While these rights are not as extensive as those for married couples, they help address some financial and property-related concerns for cohabitants.

Financial claims upon separation 

If a cohabiting couple separates, either party can make a financial claim against the other. However, the court does not seek to equalise finances as it would in a divorce; instead, it aims to provide fair compensation if one partner has been financially disadvantaged by the relationship to the advantage of the other party. These claims are more limited than those available to divorcing spouses and are focused on remedying specific imbalances rather than dividing assets equally.

Inheritance rights on death 

Should one partner die without a will, the surviving partner does not automatically inherit any of their estate. However, they may apply to the court for financial provision from the deceased partner’s estate. The court’s decision will depend on several factors, including the duration of the relationship and the level of financial dependency. While this offers some protection, it is not as comprehensive as the inheritance rights of married spouses.

Household goods and property 

Scottish law generally presumes that cohabitants have equal rights to household goods acquired during their relationship, such as furniture and appliances. However, this assumption does not extend to larger assets like cars or homes, which require clear proof of ownership or contribution to be shared equally.

Protecting yourself as a cohabitant

To safeguard financial and property interests, cohabiting couples in Scotland should consider creating legal agreements to establish clear rights and protections. Here are two essential steps that can provide added security:

Cohabitation agreements 

A cohabitation agreement is a legal document that defines how assets, such as property and savings, will be handled if the relationship ends. Similar to a prenuptial agreement, it offers a practical way to protect both parties’ interests and ensure a fair division of assets if the couple separates.

Drafting a Will 

Creating a will is especially important for cohabiting couples because, without one, a surviving partner will not automatically inherit the deceased partner’s assets. By drafting a will, cohabitants can ensure their estate is distributed according to their wishes.

Cohabiting couples have limited rights compared to married couples, and these protections do not fully compensate for the legal benefits of marriage. For couples who prefer not to marry but wish to secure their rights, creating a cohabitation agreement and a will are practical ways to establish a level of legal protection.