Scots Family Law - Cohabitation

Cohabitation

Couples who live together but are not married or in a civil partnership have very limited legal obligations and rights. According to the Scottish Government it is a common misunderstanding in Scotland that a couple will have established a common-law marriage after having lived together for a certain period of time. The last form of irregular marriage, marriage by cohabitation with habit and repute, was abolished from 4 May 2006 and required more than just living together. The confusion could be caused by the continued existence of this type of common law marriage in a number of U.S. states.

The Family Law (Scotland) Act 2006 introduced new rights and obligations concerning cohabiting couples. For the purposes of the 2006 Act, a cohabiting couple is a couple (either opposite sex or same sex) who live together as if they were married or in a civil partnership. There is no minimum amount of time specified that a couple must live together before they can be considered to be cohabiting, but the court will consider the amount of time as a factor when deciding whether they were living as if they were married or in a civil partnership.

The 2006 Act creates a legal presumption that each party will have an equal share in household goods (excluding motor vehicles and money) acquired during the cohabitation. The parties are also presumed to have an equal share in any allowance or account created for joint household expenses.

Cohabiting couples also have limited rights which focus on their shared home. If the home is held under a lease the cohabitant has a right to continue living in the property and being a party to the lease if their cohabiting partner dies. If one party owns the home that they share the other party can apply to the court for the right to occupy the home in the event that the relationship breaks down. This right can also be used in certain circumstances to block the party who owns the property from selling it and stop a bank from repossessing the home under a mortgage.