Cohabitation: 5 common myths debunked

The number of couples choosing to live together without formalising their relationship is increasing. However, despite cohabitation becoming increasingly common, many people remain unclear about their legal rights.

Cohabitants can face significant financial and practical consequences when relationships break down or when one partner dies. In this article we explore five common myths regarding cohabitation in Scotland.

Myth 1: “We are “common law” married”

Cohabitants may believe that they have rights akin to those of a spouse if they live together for a sufficiently long period.

Under Scots Law a ‘common law’ marriage does not exist. A form of irregular marriage known as "marriage by cohabitation with habit and repute" may be recognised (although this is difficult to establish). However, the introduction of the Family Law (Scotland) Act 2006 (“the 2006 Act”) abolished marriage by cohabitation with habit and repute for parties who began to cohabit after 4 May 2006.

The 2006 Act introduced specific remedies for cohabitants following relationship breakdown or the death of their cohabitant. The orders available to cohabitants and the basis of their assessment differ significantly from the legal provision for married couples and civil partners. Whilst cohabitants are currently defined in the 2006 Act as a couple living together as if they were married, cohabitants have no automatic entitlements. A cohabitant should not generally expect a financial claim to put them in the position that they might have been in if they were a spouse or civil partner.

Myth 2: “If we separate, pensions are automatically shared”

Pension rights are often among the most valuable assets a person owns. Whilst a pension share can be sought by a spouse as part of the division of matrimonial assets, the range of orders available to cohabitants on separation does not extend to pension sharing orders.

Under Scots Law, cohabitation claims are currently limited to payment of a capital sum from one cohabitant to the other (although a report by the Scottish Law Commission has recommended that the range of orders be extended). There are also strict time limits in which a claim can be made (within 12 months of parties ceasing to cohabit), so it is crucial that legal advice is sought early following a separation.

Myth 3: “My partner will inherit everything if I die without a will”

Unlike spouses and civil partners, cohabitants have no automatic right of inheritance from each other’s estates in the event that one of them dies intestate (without a will). The 2006 Act provides that the surviving cohabitant can apply to the court for a discretionary award from the deceased’s estate. These claims require a careful balancing by the court of all of the facts and circumstances of the particular case. Any award made will not exceed the provision which would be made to a surviving spouse or civil partner. Again, there is a strict time limit – claims have to be made within six months of the cohabitant’s death (although legislation has been passed to extend the time limit to twelve months, this has not yet come into effect).

Having a valid and up to date will in place is the most effective way to ensure that any cohabiting partner is afforded sufficient provision. As a financial claim can only be made against the estate of a cohabitant who dies without a will, having a will in place will guard against such claims.

Myth 4: “We don't need a cohabitation agreement, a verbal agreement is enough”

During the whirlwind of excitement when parties move in together, it is easy to defer discussions about the protection of financial interests in the event of a future separation. Some couples may reach a verbal agreement as to what they envisage happening if the relationship breaks down. Whilst this may feel sufficient, it can easily end in dispute at a later date and it does not therefore offer adequate protection. A formal written cohabitation agreement can provide clarity as to the financial arrangements in the event of a separation.

Myth 5: “If we have children together, we have the same legal rights as married couples”

Having children together does not automatically provide cohabitants with any additional financial entitlement (other than the right to seek child maintenance).

Parental rights and responsibilities in relation to a child and any financial obligations to the child are separate to the matter of financial provision for the cohabitants themselves. However, the 2006 Act provides that, in addition or as an alternative to a capital sum award, a cohabitant can apply to the court for an order requiring their former cohabitant to pay an amount towards the economic burden of caring, after the end of the cohabitation, for a child of whom the cohabitants are the parents. Where such orders have been made by the court, they have typically been assessed with reference to childcare costs. Again, these claims must be made within one year of the date of separation.

For anyone considering moving in with their significant other, it is important to seek legal advice early to ensure that the legal implications are properly considered and understood. For those already living together, a cohabitation agreement can be put into place at any time. Such agreements provide reassurance and should limit the potential for potentially expensive legal arguments down the line.