Couples residing together without being married is becoming more common, but many remain unclear as to what their legal rights are in the event of separation.
How does the law define an unmarried couple?
The legal term for unmarried couples is “cohabitants”
A cohabitant is, as defined by Section 25 of the Family Law (Scotland) Act 2006, someone who is living with another person as if they were husband and wife or in a civil partnership.
In order to determine if the couple are cohabiting, the court will take into consideration:
- The length of time parties have resided together;
- The nature of the relationship during that time;
- The nature and extent of any financial arrangement between them
What am I entitled to if we separate?
When a cohabiting couple separates, either party may apply to the court within one year of the date of separation to make a financial claim. Of course, our solicitors can assist in resolving the matter without court proceedings, however the date upon which either party must make the claim is within one year of separation. Following this date, the right to claim expires.
The claim available to a cohabitant differs from that of a married person. There is no automatic claim to assets or the other’s estate. The claim is a financial claim based on one cohabitant having suffered an economic disadvantage while the other has had an economic advantage. The claim can include, but is not limited to, financial contributions made by one party, career sacrifices, childcare responsibilities, non-financial contributions to businesses or property.
What about our property?
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 division of the property is outlined within the title deeds. As joint owners, each partner has the right to live in and stay in the home. These are called occupancy rights. In certain situations, a court can issue an order requiring one partner to leave. This is called an exclusion order.
Sole ownership: If only one partner is named on the title deeds, they are the legal owner (often called the “sole owner” or “entitled partner”) and have an automatic right to live in the property. The other partner, known as the “non-entitled partner,” does not automatically have the right to remain but may apply to the court for occupancy rights.
What if my partner dies?
A surviving cohabitant can make a claim against their partner’s estate if they die intestate i.e. without a will. The claim must be made within six months of death. The court has wide discretion in terms of the amount and type of award from the estate, but they cannot award to the cohabitant any more than they would have been entitled to as a spouse or civil partner of the deceased.
We are moving in together; how can we safeguard our future?
Given the complexities around the rights of unmarried couples, we strongly recommend that couples living together, or thinking of doing so, sign a cohabitation agreement to protect themselves financially should their relationship come to an end.
What can be included in a cohabitation agreement?
- The financial arrangements during the relationship
- The division of the property in the event of separation
- Arrangements for the division of any joint property in the event of separation
- Provisions for any children of the relationship
Should you wish to discuss any of the above, please get in touch with our team and one of our family solicitors will be able to meet with you to advise you on your options.
DISCLAIMER
The content of this page is for information only. It is not intended to be construed as legal advice and should not be treated as a substitute for specific advice. Gibson Kerr Ltd accepts no responsibility for the content of any third party website to which this webpage refers. Gibson Kerr Ltd is regulated by the Law Society of Scotland.