Does “common law marriage” exist in Scotland?
“Common law marriage” is a term that has been used colloquially for centuries in circumstances where couples have lived together like husband and wife but have never formalised their relationship by getting married. There is often misunderstanding about whether “common law marriage” exists in Scotland, and as family lawyers, we frequently hear from clients who assume that they will be regarded as a “common law wife” or “common law husband.” Somewhat contrary to popular belief, “common law marriage” is not a status or concept recognised by Scots Law.
Much of the confusion surrounding “common law marriage” has arisen because it used to be possible for couples to form a "marriage by cohabitation with habit and repute." This ‘irregular’ type of marriage could be established through an application to a court where the relationship met certain conditions, but the law enabling this was almost completely abolished in 2006.
What Rights Do Cohabitants Have in Scotland?
Cohabiting couples do not currently have any automatic rights in the event of separation or the death of a partner, but they can apply to the court for:
- Financial provision in the event of separation – Cohabitants can apply to the court for payment of a capital sum if they can prove they have suffered economic disadvantage in the interests of the other cohabitant or a child of the cohabitants and/or an amount of money in respect of the economic burden of caring, after the end of cohabitation, for a child of the relationship. Crucially, any such application to the court must be made within one year from the date of separation.
- Transfer of property or payment of capital in the event of death – If a cohabitant dies without having made a will, the survivor will not automatically share in the deceased’s estate but can make an application to the court within six months from the date of death for a payment from the deceased’s estate and/or transfer of property.
- Occupancy rights – Unlike married couples, cohabitants do not have an automatic entitlement to continue living in a property that is leased or owned by their partner, but ‘non-entitled’ cohabitants can apply to the court for the right to occupy the property for a prescribed period in certain circumstances.
What Can Cohabitants Do to Protect Themselves?
- Enter into a Cohabitation Agreement regulating the financial aspects of cohabitation, including provisions to protect any deposit used in the purchase of heritable property.
- Carefully manage finances during the relationship so that savings are kept separate and contributions toward living costs are equal.
- Review wills and powers of attorney.
- Ensure nominations for pension death-in-service benefits reflect wishes.
The law on cohabitation in Scotland has been criticised as being out of date, unclear, and overly complicated. A review has been carried out by the Scottish Law Commission, and changes to the law are anticipated. Given the complexities involved in this area of law, it would be advisable to take legal advice before the commencement of cohabitation.
For a confidential chat, please contact the Aberdein Considine Family Law team.
