The latest report from the Office for National Statistics has indicated that property prices in the UK have risen by an average of 11.7% in the last year. While that figure drops to 7.9% when London and the South East are removed from the equation, it is clear that the cost of buying a home in the UK is generally increasing. Indeed, in Scotland alone, annual inflation on house prices stood at 7.6% for the last year and, across the UK, the average price paid by first time buyers rose by over 13% in the last 12 months.
It is therefore perhaps unsurprising that the family law organisation, Resolution, has indicated that couples are increasingly choosing cohabitation in order to reduce the financial burdens that they each face. By living together, partners are able to pool their resources to pay for accommodation and everyday living expenses.
While the Family Law (Scotland) Act 2006 bridged some of the gaps between the legal position of married couples and cohabitees, by introducing a set of basic rights to protect cohabitees in the event of the relationship breaking down, there remain some important differences in the position of each under Scots law. Before moving in together, therefore, cohabitees should consider some of the legal implications of doing so.
Cohabitation in Scotland: 5 Legal Tips
The following tips debunk the myths of ‘common law marriage’, and highlight things that cohabiting couples may want to consider prior to moving in together.
1. There is no such thing as a common law spouse in Scotland
It is commonly believed that partners who live together for a sufficient period of time can establish a ‘common law marriage’. This belief is, however, mistaken. No such concept exists in Scottish law. Partners that live together, even for a substantial amount of time, will not have the same legal rights as legal spouses or civil partners.
In the past, it was possible for cohabitees to establish ‘marriage by cohabitation and repute’, but the rule was rarely invoked and eventually abolished in the Family Law (Scotland) Act 2006.
2. If you are renting together, consider whether or not you want both partners names on the tenancy. If you are buying together, clarify the ownership of the property in writing.
Couples that choose to rent a home together can do so under a variety of arrangements. Both partners may choose to be on the tenancy. This can either be as joint tenants or as separate tenants. Under the former, the pair will be responsible for rent together. As such, if one partner is unable to pay rent for any reason, you will be liable to pay his or her share. Separate tenancies avoid this situation, but have different legal implications, and it may be difficult to get a landlord to agree to such an arrangement where a couple are sharing flat.
It is also possible that only one of the cohabitees will be listed as a tenant – known as the ‘sole tenant’. The other partner will be known as a non-tenant occupier in such a scenario. This situation commonly arises where one of the partners moves into the rented flat of the other. However, it is important for the non-tenant occupier to note that they will not have rights to remain in the property in such a situation if the tenant-partner withdraws his or her permission and gives reasonable notice of this. In this regard, cohabitation still differs from marriage, as a non-tenant spouse cannot be so easily removed.
If a couple chooses to buy a home together, it is essential that they clarify their respective legal positions in writing to make sure that any agreement as to how the home is owned is respected in the event of separation. If they wish to own the house together as joint owners, this should be made clear.
If one partner moves into a home already owned by the other, and is not a joint owner, he or she will not have a right to remain in the property if the owner withdraws permission. Unlike rented accommodation, however, it is possible to apply to the court for limited rights to remain in such a situation, though the non-owner partner cannot prevent the sale of the house. Such a partner will not be entitled to the proceeds of any sale of the house, except in limited circumstances where he or she made financial contributions to the property.
3. Prepare to share, or label your things
Where couples live together, the law presumes that any household goods bought during the period of cohabitation are owned equally. Pets, vehicles, money and securities are not included in this presumption. Furthermore, goods that the partners bought or acquired before moving in together will still be owned separately. If cohabiting couples wish to own their household goods separately, they should agree this in advance and preferably put it in writing.
4. Make a will
Cohabitants are strongly advised to make a will, particularly if they live have bought a house together. Where a partner in a marriage dies without making a will (‘intestate’), his or her spouse will be entitled to the family home and its contents, as well as any part of the estate remaining once other legally entitled persons have been provided for. This does not apply to cohabitees.
Under the Family Law (Scotland) Act 2006, cohabitees can apply to the court within 6 months of the death of their partner, seeking a share of the estate. However, there are no guarantees that such an application will be successful, nor any certainty as to the share that the cohabitant will be granted in the event of a successful application. Instead, cohabitants should make a will. By doing so, they can guarantee that their partners can remain in their family home after the death of one of the partners, or clarify how they would like the property to be dealt with in such a scenario.
5. In the event that the relationship breaks down, know your rights
Considering the tips above and clarifying the legal position of each partner in writing before moving in together allows cohabitants to know their rights in the event that the relationship breaks down.
In addition, if a cohabitant feels that they have been financially disadvantaged in some way during the course of the relationship, they can apply to the court to make a claim against a former partner after separation. This may be case where, for example, one partner has taken time off work to care for children.
Legal Advice for Cohabitants
There have been significant changes in the law relating to cohabitants in recent years. However, it still remains the case that cohabitants do not have the same entitlements as spouses under Scots law, despite the fact that many people appear to live ‘as if man and wife’. As such, cohabitants may want to make a ‘cohabitation contract’, to regulate their legal affairs, and are advised to make a will.
The solicitors at Gibson and Kerr have extensive experience in the field of cohabitation. If you are thinking of moving in with a partner, or have purchased property with your cohabiting partner, contact us today for legal advice.
