Legal Rights of Unmarried Couples in Scotland

Understanding the Legal Position of Unmarried Couples in Scotland

Cohabiting couples are one of the fastest-growing family types in the UK, but many people are unaware of the legal protections (or lack thereof) available to them in Scotland. Unlike married couples or those in civil partnerships, cohabiting partners don’t have the same automatic legal rights. However, the law in Scotland does recognise cohabitation in certain circumstances, offering remedies for issues like separation, inheritance, and financial provision.

If you’re in a cohabiting relationship, understanding your rights is crucial to protecting your future. This blog highlights the key legal areas you need to be aware of and how Gilson Gray can help guide you through this complex area of family law.

What is Cohabitation in Scotland?

Under the Family Law (Scotland) Act 2006, “cohabitation” is defined as a couple living together as if they were married or in a civil partnership. The Court considers various factors to determine whether a relationship qualifies as cohabitation, such as:

1. Length of time the couples have lived together.
2. The nature of their relationship (e.g., were they perceived by others as a couple?).
3. The nature of the parties’ financial arrangements such as shared finances and responsibilities during the relationship.

While cohabitation offers some legal recognition, it does not provide the same level of rights as marriage or civil partnership. This distinction becomes particularly important in situations involving separation, inheritance, or disputes over property and children.

Financial Provision Upon Separation

When cohabiting couples separate, the legal framework differs significantly from that of married couples. Partners have no automatic right to claim financial support or property. However, you may apply to the courts under certain circumstances, such as:

1. Economic Advantage and Disadvantage: If one partner suffered a financial loss or disadvantage (e.g., giving up work to support the family), and the other partner benefited, there is scope for a claim to be made.
2. Child-Related Costs: Claims can also be made for contributions towards the “economic burden” of raising children after separation.

It’s important to note that claims must be made within one year of separation, and the Court has discretion to decide the appropriate level of financial provision. Seeking advice early is essential.

Property and Housing Rights

Property rights for unmarried couples in Scotland can be complex. Ownership is typically determined by whose name is on the title deeds or rental agreement. Here’s a breakdown:

1. Joint Ownership: If the property is co-owned, the division of proceeds upon sale is usually based on the share outlined in the title deeds. Disputes may arise if contributions were unequal, such as if one partner provided a larger deposit.
2. Single Ownership: If the property is solely in one partner’s name, the other partner has no right to claim ownership of the property. The property will belong solely to the person whose name is on the title deeds. In the event of a separation the other party may be able to seek a financial award based on any financial contributions they have made during the course of the relationship (e.g., mortgage payments or renovations).
3. Occupancy Rights: If the property is owned by one partner the other will have no automatic right to stay in their partner’s home post-separation. However, the Court may grant temporary Occupancy Rights in cases of domestic abuse or other exceptional circumstances.

A cohabitation agreement can help clarify ownership and avoid disputes down the line.

Inheritance Rights for Unmarried Partners

Inheritance rights for cohabiting couples differ considerably from those of married couples. If one partner passes away without a Will, the surviving partner must act quickly, as claims must be made within six months of death.

The Court has discretion to award a share of the deceased’s estate, but this is often limited and less extensive than the entitlement of a legal spouse. You cannot inherit more than you would have as a spouse or civil partner.  For example in deciding whether to make an order, the Court has to consider:

1. The size of the net intestate estate and any other rights or claims on the estate (e.g., children).
2. Any benefit received, or to be received, by the surviving cohabitee as a consequence of the deceased’s death from somewhere other than the intestate estate, such as a life assurance policy or pension

Pension and death-in-service benefits may be awarded at the discretion of trustees, depending on whether the deceased named the surviving partner as a beneficiary.

Having a valid Will is the best way to ensure your partner is adequately provided for in the event of your death.

Care arrangements for Children and Maintenance

1. Parental Responsibilities and Rights (PRRs): If the father is named on the child’s birth certificate, he automatically has PRRs in respect of that child. If not, he will need to either acquire those rights and responsibilities by entering into a formal agreement with the child’s mother or apply for them through the court.
2. Child Maintenance: Both parents are legally obliged to financially support their children, regardless of their marital or relationship status. Maintenance arrangements can be agreed upon privately or through the Child Maintenance Service (CMS).

Disagreements over child care arrangements such contact or residence may require mediation or legal intervention.

Why Cohabitation Agreements Matter

Given the complexities around the rights of unmarried couples in Scotland, a cohabitation agreement can offer security and clarity. These legally binding documents outline key aspects of your relationship, such as:

1. Ownership and division of property and assets.
2. Financial contributions during the relationship.
3. What will happen in the event of separation or death.

A cohabitation agreement ensures both partners are protected, reducing the likelihood of disputes and uncertainty.

Gilson Gray’s experienced family law solicitors can draft a bespoke cohabitation agreement tailored to your specific circumstances.

How Gilson Gray Can Help

Navigating the legal rights of cohabiting couples in Scotland can be daunting, but you don’t have to do it alone. At Gilson Gray, we combine legal expertise with compassionate client care to deliver practical solutions. Whether you need advice on separation, property disputes, inheritance, or drafting a cohabitation agreement, our family law specialists are here to help.

Why Choose Us?

• A full-service law firm with multidisciplinary expertise across family law, property law, and financial services.

2. With offices across the UK, including; Edinburgh, Glasgow, East Lothian, Dundee, and Aberdeen for convenient access to advice and representation.

3. A reputation for exceptional client care and innovative solutions that put your needs first.

Contact Gilson Gray today to schedule a consultation with our family law experts or to learn more about our services.

Find out more about our Family Law services here.

The information and opinions contained in this blog are for information only.  They are not intended to constitute advice and should not be relied upon or considered as a replacement for advice.  Before acting on any information contained in this blog, please seek solicitor’s advice from Gilson Gray.