As more couples in Scotland choose to live together without marrying or entering into civil partnerships, it’s important to understand that cohabitation does not carry the same legal protections as marriage.
At Jones Whyte, our experienced cohabitation agreement solicitors are here to guide you through the legal complexities. Our team will help you safeguard your assets and clarify your rights regarding property and finances.
In this guide, we’ll discuss the key aspects of property rights for cohabiting couples in Scotland, debunk the myth of common law marriage, and outline why cohabitation agreements are a good investment to protect yourself and your partner.
Table of Contents
- Unmarried Couples: Understanding property ownership, occupancy rights & rental agreements in Scotland
- The myth of common law marriage
- Cohabitation rights in the event of separation or death
- Why you should consider a cohabitation agreement in Scotland: Jones Whyte's approach
- The benefits of choosing Jones Whyte's cohabitation agreement solicitors
- Key takeaways
- Frequently asked questions
Unmarried Couples: Understanding Property Ownership, Occupancy Rights & Rental Agreements in Scotland
Before we continue, it’s best to understand that a cohabitant is defined under the Family Law (Scotland) Act 2006 as someone living with another person as if they were spouses or in a civil partnership. There is no minimum duration requirement to qualify as a cohabitant, but the courts will consider:
- The length of the relationship.
- The nature of the relationship.
- The financial arrangements between the parties.
Now, let’s look at various rights for cohabiting couples pertaining to property ownership, occupancy and tenancy agreements in Scotland:
Property ownership
In Scotland, legal ownership of a property is determined by whose name is on the title deeds.
- Joint ownership: If both partners’ names are on the title deeds, the property is typically held in equal shares unless the deed states otherwise. As joint and equal owners, both have equal rights to occupy the home. A court order is required to remove one party (cohabitee) from the title deeds.
- Sole ownership: If only one partner’s name is on the title deeds, they are the legal property owner, also referred to as the “sole owner” or “entitled partner”. They have an automatic right to live in the home. The other partner is considered the “non-entitled partner” and isn’t automatically entitled to occupy the property but can claim occupancy rights through the Scottish courts.
Common misconception: Contributing towards mortgage payments, deposits or paying for renovations or maintenance does not automatically give you legal ownership rights if your name isn’t on the title deeds.
Occupancy rights
Even if you’re not the legal owner, you may still have occupancy rights to the home. The non-entitled partner must apply for occupancy rights through the courts; however, there’s no guarantee it will be granted.
If granted, occupancy rights allow the non-entitled partner to:
- Move into the property with any children residing with the cohabiting couple.
- Take responsibility for the home (e.g. pay for maintenance) as if they were the sole owner.
Note: Occupancy rights are only granted for a stipulated timeframe, typically six months, with the possibility of extensions through further court orders.
Entitled partners can apply for:
- Restrictions on the non-entitled partner’s use of the home.
- Court orders to enforce or protect their own occupancy rights.
- Exclusion orders or interdicts to remove or restrain the other party.
Without a legal agreement, a non-entitled partner risks severe vulnerability if the relationship ends. Despite potential years of financial contributions towards the home, they could face immediate housing insecurity.
Rental agreements
- When both names of the cohabiting couple are on the tenancy agreement, each partner is jointly liable for rent. In cases of joint tenants, either party can be held liable for the full rental if the other doesn’t pay.
- Should the relationship break down, both partners must negotiate with the landlord to change the rental agreement.
- If only one partner’s name is on the tenancy agreement, the other has limited rights and could be asked to leave the premises with minimal notice if the relationship ends.
The Myth Of Common Law Marriage
One of the most common cohabitation misconceptions in Scotland is the idea of “common law marriage”.
For many years, couples could be considered legally married through “cohabitation with habit and repute.” However, this was abolished with the introduction of the Family Law (Scotland) Act 2006.
Despite what many believe:
- Common law marriage is not recognised in Scots Law when dealing with cohabiting couples.
- Living together for years, even decades, does not automatically create marriage-like rights.
- Having children together does not create the legal equivalence of marriage.
Those in a cohabiting relationship mistakenly believe they have the same (or similar) legal rights as married couples or civil partners after living together for a certain period. Unfortunately, this is not the case.
The statutory rights under the Family Law (Scotland) Act 2006 can provide some protection, but not to the extent of marriage rights. In the event of separation or death, unmarried couples must seek legal advice and go to court to access these limited rights.
Cohabitation Rights In The Event Of Separation Or Death
Cohabiting couples have some rights under the Family Law (Scotland) Act 2006, including claims for financial support upon separation or death and rights to certain household goods. However, these are not an automatic guarantee and often require court intervention.
A claim on separation
When a cohabiting relationship breaks down, either party may apply to the court within one year of the date of separation to seek financial support and provisions. Legal counsel is advised.
A cohabitant can apply for:
- A lump sum: The court can award a cash lump sum if it considers one partner has suffered economic disadvantage due to contributions made during the relationship (e.g. sacrificing a career, funding renovations, or childcare). These payments can be lump sums or monthly instalments.
- Compensation for economic advantage: The court reviews each claim based on fairness and evidence. For instance, additional provisions may be made if one partner financially benefitted from the other’s contributions, such as free accommodation or unpaid work in a business.
Note: Currently, there isn’t a strict law in Scotland that dictates exactly what a cohabiting partner will receive if they separate. However, the Scottish Parliament may change this in the future to allow for additional financial arrangements similar to those in divorce cases, such as transferring property or sharing pensions.
A claim on death
This only applies if a cohabiting partner dies without a will (known as intestacy) and potentially allows a surviving cohabitant to claim the same property rights and financial security as a surviving spouse would. However, in reality, these claims are often much less than what a surviving spouse would receive.
Key factors that apply include:
- The claim must be made within six months of the deceased’s death.
- Claims must be made through the Sheriff Court or the Court of Session.
- The amount awarded cannot exceed what a surviving spouse or civil partner would receive under intestate laws.
- It is at the court’s discretion as to what is awarded from the deceased’s estate. This might be a lump sum, asset transfer (like a house) or portion of a pension.
Why You Should Consider A Cohabitation Agreement In Scotland: Jones Whyte’s Approach
A cohabitation agreement is a legally binding document that outlines how property and finances will be handled during the relationship and after it ends.
At Jones Whyte, we believe in empowering unmarried couples to protect their futures and recommend creating these agreements for several key reasons:
- Provides certainty and protects both partners.
- Prevents costly and stressful court proceedings.
- Allows unmarried couples to decide their own arrangements rather than leaving decisions to the court.
- Addresses property rights and ownerships, financial support and child maintenance.
- Can be updated as circumstances change. For example, you can adjust the agreement after receiving an inheritance.
Jones Whyte’s approach
- Conduct detailed consultations to understand your specific situation, concerns and goals.
- Provide tailored advice on what should be included in the agreement based on your circumstances.
- Draft and create a comprehensive agreement in plain language to avoid misunderstandings.
- Include future provisions to prevent potential life changes from affecting the agreement.
- Regularly review the agreement as your situation evolves.
A well-drafted cohabitation agreement provides evidence of property ownership and financial contributions, making it easier to resolve matters if the relationship ends.
The Benefits Of Choosing Jones Whyte’s Cohabitation Agreement Solicitors
Partnering with Jones Whyte is a smart move for various reasons:
- Expert advice: With decades of combined experience between 170 solicitors, legal executives and professional business support staff, Jones Whyte provides top-class legal advice specific to cohabitation needs.
- Efficiency: We understand that legal matters can be stressful, so we work efficiently to provide timely solutions for your peace of mind.
- Full-spec service: Beyond cohabitation agreements, we offer comprehensive support in various legal fields, including wills, trusts and other areas of family law.
Key Takeaways
- In Scotland, unmarried couples do not have the same legal safeguards as married couples or those in a civil partnership.
- Property rights are typically given to whoever’s name is on the property title deeds. Joint names mean equal ownership. If only one name is listed, that person (entitled partner) owns the property; however, the other (non-entitled) partner may be able to claim occupancy rights through the Scottish courts.
- Occupancy rights are only granted for a stipulated timeframe, typically six months, with the possibility of extensions through further court orders.
- If both partners’ names are on a tenancy agreement, they both have equal rights to reside in the home. If only one name is on the agreement, the other is at risk of moving out with minimal notice.
- Jones Whyte’s legal team highly recommends unmarried partners draft a legally binding cohabitation agreement to protect themselves should the relationship break down.
Jones Whyte Is Here To Help
Scottish cohabiting couples don’t have the same automatic property rights as married couples. Ownership depends on whose name is on the title deeds. “Common law marriage” also isn’t legally recognised.
To safeguard your property rights and provide clarity for the future, a cohabitation agreement is recommended. Speak to Jones Whyte’s family law team to create an agreement tailored to your specific circumstances.
Please note: This article is for general information purposes only and does not constitute legal advice. It should not be relied upon as a substitute for professional legal advice tailored to your specific circumstances. If you need advice on a legal matter, get in touch with our team.
