Does common law marriage exist in Scotland?

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The answer? In short, no.

In the past, there were legal / cultural norms that made marriage virtually essential for couples. There are many reasons why a couple may choose not to marry or enter into a civil partnership – and it is increasingly common not to do so.

Arguably, the cohabitant rights law has yet to catch up with the way many people now choose to live their lives. For this reason, Scottish law in this area is currently under review by the Scottish Law Commission.

Common law marriage” in Scotland

For many people, it is not clear whether ‘common law marriage’ exists in Scotland. Contrary to popular belief, this is not a legal status in Scotland.

Common-law marriage is a colloquial term sometimes used to describe a couple who live together but have not formalized their relationship by marrying / entering into a civil partnership.

What we have in Scotland, however, are legal rights for “cohabitants”. The Cohabitation Act was born out of an amendment to the law on 4 May 2006 (Family Law Act (Scotland) 2006, Articles 25-29).

Cohabitation with habit and reputation “vs” common-law relationship “

There was an outdated form of ‘irregular’ marriage in Scotland called ‘cohabitation with habit and reputation’. It is this legal concept that people sometimes call “common law marriage”.

Following the modification of the law in 2006, cohabitation with habit and reputation was almost completely abolished.

It is still possible in certain circumstances (ie couples who started cohabiting before May 4, 2006) to take legal action on this basis, but it is not common to do so.

Which couples would be considered cohabiting?

The starting point is that the cohabitants are a couple living as a couple as if they were married or in a civil partnership.

To determine if a couple was cohabiting, the factors to consider are:

  • how long the couple have lived together (even a relatively short period may be sufficient);
  • how their lives and finances were intertwined;
  • if the couple’s social circle saw cohabitants as a couple, rather than simply as friends / roommates.

If a cohabiting couple separates, what are their rights towards each other?

Unfortunately, there are no automatic rights.

When a cohabiting couple separates, there are certain claims on which either cohabitant can rely to seek financial compensation or assert certain other rights.

These complaints are as follows: –

A right of occupancy is a right to live somewhere. Married / civil partnership couples have tenure rights to the house they lived in together (also known as the “family home”), regardless of who owns the house.

Cohabitants do not automatically have the right to continue living in accommodation owned / rented by their cohabiting partner (although special rules apply in cases of domestic violence).

However, it is possible for a partner to apply to a court for tenure rights. Whether or not a court grants occupancy rights would depend on individual facts and circumstances and the occupancy right would only apply for a prescribed period.

Cohabitants do not have the direct right to share anything of their partner’s property.

It is possible for a cohabitant to seek financial compensation from a court if he has suffered an “economic disadvantage” which has resulted in a corresponding “economic advantage” for the other cohabitant, the main objective being to correct imbalances and find a way out which is right.

Whether or not a court will award financial compensation is decided on a case-by-case basis, with the court exercising its discretion to decide the issues. This may include a lump sum, a payment to recognize any economic burdens of child care, and any other interim orders the court deems appropriate.

This type of complaint has a strict deadline and must be initiated in one year of the couple ceasing to live together. There is a very limited exception to this rule, if one of the cohabitants is in another country and the couple is engaged in mediation.

What happens if a cohabitant dies?

If a cohabitant dies without a will, there is no automatic legal right for the surviving cohabitant to share the deceased’s “estate” (the property he left behind).

However, the survivor can go to court. within six monthsof the death of their partner to be allocated part of the deceased’s net “intestate” estate (click here for more information on intestate inheritance), or to have a certain asset transferred.

The Court has a wide discretion as to whether or not to grant such compensation.

Click here to find out more about the legal situation if a partner dies without a will.

Is there anything the cohabitants can do to gain more security or legal certainty?

There are measures that cohabiting couples can take to mitigate the fact that they do not have the same level of legal protection as those who are married or in a civil partnership, such as: –

  • Conclude a “Cohabitation Agreement”

A cohabitation agreement is a contract that can be used to formalize how property / finances will be handled by a cohabiting couple. Click here to learn more about cohabitation agreements.


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