The answer? In short, no.
In times past, there were legal/cultural norms that made marriage virtually essential for couples. There are numerous reasons a couple may have for choosing not to get married or enter a civil partnership - and it is increasingly common not to.
Arguably, the law in relation to cohabitants rights has not yet caught up with the way that many people now choose to live their lives. For that reason the law in Scotland this areas is presently under review by the Scottish Law Commission.
'Common law marriage' in Scotland
For a lot of people it is unclear whether 'common law marriage' exists in Scotland. Contrary to popular belief, it is not a legal status in Scotland.
Common law marriage is a colloquialism sometimes used to describe a couple that live together but have not formalised their relationship by getting married / entering into a civil partnership.
What we do have in Scotland, however, are legal rights for ‘cohabitants’. The law in relation to cohabitation came about from a change in the law on 4 May 2006 (the Family Law (Scotland) Act 2006, Sections 25-29).
‘Cohabitation with habit and repute’ vs 'common law marriage'
There was an outdated form of 'irregular' marriage in Scotland called: ‘cohabitation with habit and repute’. It is this legal concept that people sometimes referred to as 'common law marriage'.
Following the change in the law in 2006, cohabitation with habit and repute was almost completely abolished.
It is still be possible in certain circumstances (i.e. couples that began cohabiting prior to 4 May 2006) to bring a claim to Court on this basis, but it is not common to do so.
Which couples would classify as cohabitants?
The starting point is that cohabitants are a couple living together in a relationship as though they are married or in a civil partnership.
To determine if a couple were cohabitants, the factors to consider are:
- how long the couple lived together (even a relatively brief period may suffice);
- how intertwined their lives and finances were;
- whether the couple’s social circle viewed the cohabitants as a couple, rather than simply friends/roommates.
If a cohabiting couple separates, what are their rights in respect of one another?
Unfortunately, there are no automatic rights.
When a cohabiting couple separates, there are certain claims that either cohabitee can rely on to seek financial recompense or enforce certain other rights.
These claims are as follows: -
- Occupancy rights
An occupancy right is a right to live somewhere. Married/civil partnered couples have occupancy rights in respect of the home they lived together in (also known as the ‘family home’) regardless of which of them owns the home.
Cohabitants are not automatically entitled to continue living in a home owned/leased by their cohabiting partner (though special rules apply if there has been domestic abuse).
However, it is possible for a cohabitee to apply to a Court for occupancy rights. Whether or not a Court then grants occupancy rights would depend on the individual facts and circumstances and the right of occupancy would only apply for a prescribed period.
- Financial claim
Cohabitants have no direct entitlement to share in anything owned by their cohabitee.
It is possible for a cohabitee to apply to a court for a financial award if they have experienced an ‘economic disadvantage’ which resulted in a corresponding 'economic advantage' to the other cohabitee, the main objective being to redress any imbalances and find an outcome which is fair.
Whether or not a Court will make a financial award is decided on a case by case basis with the Court exercising its discretion to determine matters. This may include a capital sum being awarded, a payment to recognise any economic burden of childcare and any other interim order the Court thinks fit.
This type of claim has a strict time limit and must be instigated within one year of the couple ceasing living together. There is one very limited exception to this rule, if one of the cohabitees is in another country and the couple are engaged in mediation.
What happens if a cohabitant dies?
If one cohabitee dies without a will, there is no automatic legal entitlement for the surviving cohabitee to share in the deceased’s ‘estate’ (the property that they have left behind).
The survivor can, however, apply to a court within six monthsof the death of their cohabitee to be awarded a portion of the deceased’s net ‘intestate’ estate (click here to read about intestacy), or to be transferred a certain item of property.
The Court has a wide discretion as to whether to grant any such award or not.
Click here to read more about the legal position if a cohabitee dies without a will.
Is there anything that cohabitants can do to get more legal security or certainty?
There are steps cohabiting couples can take to mitigate the fact that they do not have the same degree of legal protection as those who are married or in a civil partnership, such as:-
- Make a Will
- Enter into a ‘Cohabitation Agreement’
A Cohabitation Agreement is a contract that can be used to formalise how property/finances will be treated by a cohabiting couple. Click here to read more about Cohabitation Agreements.
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