Cohabitation Agreements

Moving in with someone is a big decision that many couples take. In the midst of taking such an exciting step in your relationship, your main focus is unlikely to be on what will happen if things don’t go to plan and you split up at some point in the future.

Because cohabitants now have rights under the Family Law (Scotland) Act 2006, you may decide to enter into a cohabitation agreement once you and your partner have chosen to live together.

How does the law define cohabitation?

Section 25(1) of The Family Law (Scotland) Act 2006 states that a “cohabitant” is:

A person who is, or was, living with another person 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.

That’s a clear explanation, but the next section of the Act 25(2) goes on to elaborate:

In “determining for the purposes of sections 26-29” (the remaining sections on cohabitation) whether a person is a cohabitant of someone else, the court shall have regard to (a) the length of the period during which they lived together, (b) the nature of the relationship during that period and (c) the nature and extent of any financial arrangements subsisting or which subsisted during that period.

We can provide you with legal advice to suit your situation.

Why was this change in law introduced?

A study by The Office for National Statistics (ONS) found the number of cohabiting families increased by 65% in the 10 years up to 2006. The law was changed to help legally protect the financial interests of individuals who’d become part of this growing relationship trend. This trend has continued with The Office for National Statistics reporting that the number of cohabiting families increased by a further 25% between 2008 and 2018.

When might you need a cohabitation agreement?

There are different circumstances which may make you want to consider getting a cohabitation agreement in place:

• Your partner is moving into a property you already own
• You’re buying a property together to move into and one of you is contributing more than the other towards the deposit
• You have a child/children with your partner

Cohabitants can acquire rights to money arising out of the cohabitation and in order to protect assets that you have going into the relationship it’s wise to consider a formal agreement. This will regulate what is to happen in the event that you decide to live apart or you’re separated by death, and certain assets can be ring-fenced.

We understand that discussing a cohabitation agreement with your partner is not the most romantic gesture, but it makes sense to ensure your assets are protected. Contact Family Lawyer Fiona below for advice tailored to your circumstances.

You may also be interested in reading Fiona’s blog post: Buying a home together? You might need a cohabitation agreement.

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