It is often believed in Scotland that if you live with a partner for long enough, you automatically gain the same rights as a married couple. This is often called “common law marriage”.
There is no such thing as common law marriage in Scotland. Living together does not give you the same automatic legal rights as marriage or civil partnership. Instead, cohabitants have specific rights under Scots law, mainly from the Family Law (Scotland) Act 2006.
Who is a “Cohabitant”?
Section 25 of the Family Law (Scotland) Act 2006 defines a cohabitant as someone living with another person “as if they were husband and wife or civil partners.”
When deciding if a couple are cohabitants, the court looks at:
- How long they have lived together.
- The nature of the relationship (e.g. sexual, emotional, social).
- The extent of financial arrangements (e.g. shared bills, bank accounts).
Rights of Cohabitants in Scotland
1. Occupancy Rights in the Family Home
Cohabitants can apply for occupancy rights under the Matrimonial Homes (Family Protection) (Scotland) Act 1981, as amended.
- These rights are not automatic.
- They must be granted by the court.
- Orders are usually for six months at a time but can be renewed.
This is vital where the home is in one partner’s sole name and the other risks losing their home on separation.
2. Financial Provision on Separation
Section 28 of the Family Law (Scotland) Act 2006 allows a cohabitant to apply for a financial award when a relationship ends. The court can order:
- A capital sum if one partner has suffered economic disadvantage in the interests of the other or the family.
- Compensation where one partner has gained an economic advantage from the other’s contributions.
⚠️ Important: Claims must be made (served) within one year of separation. After that, the right to apply is lost.
3. Financial Provision on Death
If a cohabitant dies without leaving a will, the surviving partner does not automatically inherit.
However, under section 29 of the Family Law (Scotland) Act 2006, the surviving cohabitant can apply to court for financial provision from the estate.
⚠️ Strict time limit: The application (including service) must be made within six months of death.
Parental Rights and Responsibilities
Cohabiting does not, by itself, give parental rights. These are obtained through:
- Being the biological mother.
- Being the father named on the child’s birth certificate (for births registered after 4 May 2006).
- Obtaining a court order or formal agreement.
Protecting Your Rights as a Cohabitant
Cohabitants in Scotland can take steps to protect themselves:
- Cohabitation Agreements – A written contract that sets out how property, finances, and debts will be handled if the relationship ends.
- Wills – Essential, because cohabitants do not automatically inherit.
- Legal Advice Early – Strict deadlines apply: one year for separation claims, six months for claims on death.
Conclusion
In Scotland, there is no common law marriage. Cohabitants do have rights under the Family Law (Scotland) Act 2006 and the Matrimonial Homes (Family Protection) (Scotland) Act 1981, but these are more limited than the rights of married couples. The law recognises financial contributions and seeks fairness, but strict time limits apply.
Expert Advice on Cohabitant Rights
At XK Family Law Solicitors Aberdeen, we regularly advise cohabitants on their rights, whether during a relationship, after separation, or following the death of a partner.
If you are cohabiting and want to know where you stand, or if you need urgent advice on making a claim, contact us today for clear and practical guidance.
Ready to discuss your case?
Our articles are not legal advice. We accept no responsibility for use of this information.