Cohabitation – what are my rights?

Cohabitation laws in Scotland are a hot topic for many people who live together as a couple but are not married. While living together in a committed relationship is becoming increasingly common, it is important for couples to be aware of the legal implications of cohabitation.

In Scotland, cohabiting couples do not have the same legal rights and protections as married couples or those in civil partnerships. This means that if one member of the couple wants to leave the relationship or passes away, it is important to understand what entitlement, if any, each have.

This can be a major source of concern for couples who have been together for a long time and have built a life together. Unlike spouses, there is no obligation to provide aliment to each other.

What you are entitled to

Household goods, savings made from housekeeping allowances or property bought with such money, that a couple acquires during their time together are presumed to belong to them equally, and cohabitants are entitled to an equal share in them, regardless of whose money paid for it. This presumption is however rebuttable

However, unlike married couples, cohabitants do not have an automatic right to occupancy of the ‘family home’ where that home is owned or leased by a former partner.

It is possible however for ‘non-entitled’ cohabitants to make an application to the court for a grant of occupancy rights. In such situations, the court may grant occupancy rights to non-entitled cohabitants for a period not exceeding 6 months, however, these rights can be extended for a further period or periods of up to 6 months.

Cohabitation and making a claim

If a couple splits up, either cohabitant can make a claim through the court if they feel they have lost out financially as a result of the relationship. This must be done within a year of the breakup. This is a strict time limit.

The court looks at all the circumstances including whether the person applying to the court has suffered overall economic disadvantage, such as a loss of earning capacity or specific sum of money, and whether the other party has benefited from the other’s contributions such as looking after the couple’s children.

A cohabitant can also claim a share of their partner’s estate in the event of their death, although they must make a claim within six months of death and can only make a claim if their partner died without making a will.

Cohabitation agreements

It is important for cohabiting couples to be aware of the legal implications of their relationship and to take steps to protect themselves if they feel it is necessary. One way that they can protect themselves is by getting a cohabitation agreement.

This is a legal document that sets out how the couple wants to divide their property and assets in the event of a separation or the death of one partner. It can also specify things like who is responsible for paying which bills and what should happen if one partner dies.

A cohabitation agreement can be useful in providing peace of mind and assurance, but it is always a good idea to seek legal advice before entering into any legal agreement.

How we can help

McSherry Halliday’s professional and qualified solicitors can offer expert cohabitation advice and can assist you in assessing your entitlement to a claim upon cessation of cohabitation, negotiate matters on your behalf and draft an appropriate separation agreement based on your circumstances.