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Navigating Cohabitation Challenges: Essential FAQs for Unmarried Couples

April 19, 2023 By Stephanie McCarron Family Law

With the average age of marriage increasing in Scotland and the number of marriages falling, it is important for couples to consider what legal rights they have when living together before marriage, or if they simply do not intend on marrying.

In Scotland, a couple living together, that are not married, are recognised as cohabitants. Section 25 of the Family Law (Scotland) Act 2006 defines a cohabitant as either member of a couple consisting of a man or woman who are (or were) living together as if they were husband and wife; or two persons of the same sex who are (or were) living together as if they were civil partners. There is no minimum amount of time for parties to be living together for the 2006 Act to apply, and the court has a wide discretion when determining whether two individuals are or were cohabitants.

The court requires to have regard to three factors: the length of time the parties lived together; the nature of their relationship during that period; the nature and extent of any financial relationship during that period. We realise that many people understand the concept of marriage, but many have questions on what it means to cohabit. We asked a group of people what they wanted to know about their legal rights when cohabiting. We have taken these questions and answered them below:

My partner & I have put down different deposits, how can I protect my deposit as I am paying more?

This is not an unusual scenario, but it is very important that if you find yourself in this situation you take the necessary steps to protect your investment.

We would suggest having a very honest conversation with your partner about the deposit you are contributing. Whilst we do not want to taint a happy moment of moving in together with the thought of separating, having this conversation as early as possible will benefit both parties.

We would recommend entering into a cohabitation agreement specifying what would happen upon the sale of the property or in the event of a separation. Agreeing this at the outset makes things much easier.

Whilst there are many differences in marriage and cohabitation, the emotional impact of a relationship breaking down is not one. Having an agreement in place can reduce this burden during a difficult time.

Are there any benefits to getting married?

Unfortunately in Scotland, the laws relating to married couples are much more extensive than that of cohabitants. There are significantly more legal protections for married couples than that of cohabitants.

There is no automatic entitlement for cohabitants to any award of financial provision following separation. The orders which can be sought from court are limited to an order requiring a cohabitant to pay a capital sum; an order requiring the defender to pay a sum of money in respect of the economic burden of caring, after the end of the cohabitation, for a child of whom the cohabitants are the parents; any such interim order as the court thinks fit.

When the court is considering a claim for the aforementioned orders, they will consider if one cohabitant has gained economic advantage from contributions made by the applicant. It will also consider what extent the applicant has suffered economic disadvantage in the interests of the other cohabitant.

I’ve moved into my partner’s home but I am not on the mortgage, can I still protect what I invest in the property?

It is important to know that, without having agreed prior to moving in, you are not entitled to a share of the house. A married couple living in a house would be considered a matrimonial home, both spouses being entitled to a share of the property.

With consideration to the answer above, a safe way to protect your investment into the property is to agree matters with your partner and enter into a minute of agreement that reflects this. Your partner will still be able to protect the equity they have in the property prior to you moving in.

Whilst not specified in the question, it is important to note that unlike married couples, there is no automatic right to occupy a home that is owned by a former partner. If you are separated and you are living in a home owned by your partner, you may make an application to the court for a grant of occupancy rights. These rights would be for a period no longer than 6 months, but can be extended for a further period or periods up to 6 months.

We own a house together but don’t want to get married, what happens when one of us dies?

This is an important consideration for cohabitants, as it is another area where the law differs significantly for married couples. There are a couple of things to consider when answering this question.

The first would be to consult your conveyancer when purchasing the property about including a survivorship destination in the title to the property. A survivorship destination stipulates that upon death the share of the house is passed automatically to the survivor. If this is not in place, the share of the deceased would pass to their estate. Section 29 of the 2006 act provides that a surviving cohabitant can make an application for provision within 6 months of the death of a cohabitant. There is a considerable amount of discretion on the part of the court in relation to claims under section 29. If you are cohabiting it is important to think through your wishes, and by writing a Will you are able to ensure these wishes are considered.

What happens if we move in together and my boyfriend paints the house a horrible colour?

Perhaps not a legal question but in an attempt to answer all questions put to us by our group we did not want to leave it out.

A phrase we use frequently at Jones Whyte is ‘there are no stupid questions, only stupid answers’. When instructed by cohabitants wishing to enter into a cohabitation agreement, we hope to build relationships where clients feel comfortable to consult us on anything they feel is important to them.

Although this is not something we would necessarily include in an agreement, we recognise the frustration of the couple that find themselves in this situation. Perhaps ensuring conversations regarding interiors are had before carrying out the work is one way to avoid this situation arising.

What if we buy a house together but I pay the majority of bills and mortgage. Would my partner be entitled to half of the house if we separate?

As discussed above, there is no automatic entitlement for cohabitants to award of financial provision upon separation. However, within one year of separation, your cohabitant may make a claim for a capital sum if they have made contributions to the property.

Although explained in detail in our earlier answer, this is a scenario where a cohabitation agreement would be particularly useful. It is also recognised that financial arrangements may change over time. Perhaps following the purchase of a property, one cohabitant is promoted and with the increase in salary can pay more than what was agreed. A cohabitation agreement can be changed over time to fit the couples ever changing circumstances. We encourage our clients to review their agreement to ensure it still offers them the protection they need.

What happens if we have a house together but we split up and I want to stay in the property?

The answer to this depends on affordability. If you wish to remain in the property, you can have the property valued, and use the market value to calculate the sum owed to your partner. Your partner would then be able to transfer their share, to you, for a capital sum.

If there is a mortgage on the property, you would want to ensure you are able to obtain a new mortgage in your sole name prior to this agreement. If you are unable to obtain a mortgage in your sole name you may not be able to remain in the property. If your partner wishes they may raise an action for division and sale. If you refuse to the sale of the property without defence, you may be liable for the expense of this court action.

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