Cohabitation continues to be one of the fastest-changing areas of family life. More couples are choosing to live together without marrying or entering into a civil partnership, but the law has not always kept pace with how families organise their lives.
Recent proposals for reform in England and Wales have brought the issue back into focus. My colleague, Sophie Richardson, provides some commentary on the proposed reforms here. For couples in Scotland, the legal position is different: Scotland already has a statutory regime for cohabitants. However, those rights are limited, discretionary and subject to strict deadlines. The debate south of the border is a useful reminder that living together does not give couples the same legal protection as marriage.
There is no “common law marriage” in Scotland
A common misconception is that a couple who live together for long enough become “common law spouses”. In Scotland, that is not correct. The concept of “marriage by cohabitation with habit and repute” was abolished for relationships entered into from 4 May 2006 onwards. A cohabiting relationship may give rise to certain legal claims, but it does not create the same package of rights and responsibilities as marriage or civil partnership.
That distinction is important. On divorce, there is a structured framework for financial provision between spouses. Cohabitation claims focus on whether one party has gained an economic advantage, or suffered an economic disadvantage, as a result of the relationship or as a consequence of a child or children of the relationship.
What rights do cohabitants have if they separate?
Under the Family Law (Scotland) Act 2006, a former cohabitant may be able to ask the court for financial provision when the relationship ends. The court can consider whether one person has been economically advantaged by the other’s contributions, whether one person has suffered economic disadvantage in the interests of the other or a child, and whether any economic burden of caring for a child should be shared. Predicting how a court might deal with these type of disputes it is not easy.
Each case turns on its facts and on the evidence available. Contributions might include direct payments towards a deposit for the purchase of a property, mortgage or renovations, but they may also include non-financial contributions, such as caring responsibilities for a child of the relationship or career decisions made for the benefit of the family.
The one-year deadline is critical
Timing is often crucial. A financial claim following separation must be raised in court and served on the other party within one year of the date at which the cohabitation ends. That is a short period, and it can pass quickly when parties are dealing with the practical and emotional consequences of separation. There is currently no scope for courts to exercise any discretion to allow claims in after the one year period ends. Early advice is therefore essential.
What happens if a cohabitant dies?
The position on death is also different for cohabitants. A surviving cohabitant may have a potential claim on a deceased partner’s estate if the deceased died without a Will and was domiciled in Scotland, but that claim is not automatic and is subject to a strict statutory timescale. For claims made on death that timescale is just 6 months (this is due to be extended to 12 months, but that extension is not yet in force). The most straightforward way to avoid uncertainty is to make, and keep under review, a Will.
For those in England & Wales, my colleague, Richard Pike has taken a deeper dive on the implications for estates here.
Recent developments in England and Wales
In June 2026, the UK Government launched its consultation, “A fairer end to relationships”. Amongst other things, it seeks views on whether the law in England and Wales should provide better protection for cohabitants when relationships end or where one partner dies without a will.
At present, cohabitants in England and Wales do not have a specific statutory financial claims regime on separation equivalent to the Scottish provisions or the remedies available on divorce. In broad terms, separating cohabitants must usually rely on general property, trust and contract principles, rather than family law remedies designed for relationship breakdown. That can leave outcomes heavily dependent on legal ownership, financial records and evidence of the parties’ intentions, rather than on a broader assessment of fairness between former partners.
The consultation reflects a policy concern that many unmarried couples in England and Wales have limited financial protection on separation, despite having shared homes, finances and family responsibilities. The proposals include consideration of a statutory framework for eligible cohabitants, while keeping marriage and civil partnership legally distinct.
It also considers whether some bereaved cohabitants should have automatic inheritance rights where a partner dies intestate, and how issues such as domestic abuse, including economic abuse, should be reflected in financial outcomes.
Why does that matter for Scottish couples?
The consultation does not directly impact on the law in Scotland. Its relevance is broader: it highlights the gap between how many couples think the law works and the protection the law actually provides.
Scotland is sometimes said to be ahead of England and Wales because statutory cohabitation rights have existed here since 2006. That is true to an extent, but it should not give false comfort. Scottish cohabitation claims are not the same as divorce claims. Despite the fact that cohabitants have had rights in Scotland for 20 years there is little case law upon which solicitors can draw. That and the highly discretionary nature of these claims can make it difficult to predict accurately how a court will deal with any potential claim.
Reform in Scotland?
The Scottish Law Commission published its Report on Cohabitation in 2022, recommending changes including a more modern definition of “cohabitant”, a clearer test for financial provision, broader remedies such as property transfer orders and short-term payments for serious financial hardship, and some flexibility around the current one-year time limit.
Those recommendations have not yet replaced the existing statutory framework. For now, the key message for Scottish couples remains that the current law applies, and advice should be taken based on the rules as they stand today.
Practical steps for cohabiting couples
There are practical steps cohabiting couples can take to reduce uncertainty and help avoid disputes later. These include:
- recording who owns what, particularly where property, deposits, mortgage payments or family loans are involved;
- keeping evidence of significant financial contributions;
- considering a cohabitation agreement before, or during, the relationship;
- making or updating wills;
- reviewing arrangements after major life events, such as the birth of a child, a house move, receipt of an inheritance or a career break;
- taking advice promptly if separation is likely or has already happened; and
- taking specialist advice where there is a cross-border element, for example where a couple has lived in both Scotland and England or owns property in different jurisdictions.
Key takeaway
The renewed focus on cohabitation reform in England and Wales is a timely reminder for Scottish couples. Cohabitants in Scotland do have statutory rights, but those rights are limited and can be lost if action is not taken quickly enough.
Whether couples are moving in together, buying property, separating or planning for the future, early advice can make a significant difference. Clear financial arrangements, a cohabitation agreement and an up-to-date will can all help provide certainty and protect both parties if circumstances change.
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Legal Director
