Cohabitation agreement solicitors
If you are living together as an unmarried couple you should consider legally recognising your rights through a cohabitation agreement.
Cohabitation agreements in Scotland
If you are a couple who are thinking of moving in together or have been living together in a committed relationship for years and have chosen not to enter marriage or a civil partnership, you should consider legally recognising your rights through a cohabitation agreement.
Considering entering a cohabitation agreement with a partner can provide numerous benefits to both individuals. Its purpose is chiefly to deal with what should happen in the (hopefully unlikely) event that the relationship breaks down or in the event of the death of one the couple. A cohabitation agreement tailored to your needs can be as detailed or as simple as you would like. It can address issues like payment of household expenditure or who should retain particular assets in the event of a separation. Cohabitation agreements can not only offer protection but also peace of mind.
Our accredited and experienced team of lawyers is based throughout Scotland with offices in Glasgow, Edinburgh, Inverness & Highlands, Moray and Shetland. If you require expert legal advice regarding cohabitation agreements, contact your local family law specialists at Harper Macleod.
Members of our family law team are accredited by the Law Society of Scotland.
Common questions about cohabitation agreements
Cohabitants (sometimes referred to as “Cohabitees”) are a man and woman who are, or were, living together 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.
Sometimes, and where a cohabiting couple have separated or one of the cohabitants has died, the court has to be asked to determine whether or not the couple could be classed as cohabitants. That could be if one of them spent a lot of time away from the other (for example, someone who worked overseas) or if the living arrangements were unusual.
The main purpose of a cohabitation agreement is to detail the arrangements for things such as financial responsibilities, property and children while you’re living together or if your relationship breaks down, or you become ill or pass away.
Couples who have lived together for a long time don’t automatically have the same rights like married couples so a cohabitation agreement can be an important means of protecting your legal rights.
Yes, cohabitation agreements are legally binding contracts.
If you instruct a family law solicitor to prepare a cohabitation agreement on your behalf they can help ensure that it is executed properly and signed appropriately.
It is important to remember that cohabiting couples have no automatic legal right to claim anything where there is no Cohabitation Agreement in place. They are not entitled to the same financial provision as married couples or civil partnerships which separate.
However, our law does allow cohabitants to make a financial claim against their former partner after a relationship breakdown. It must be made within one year of the cessation of the cohabitation. So, it is important to be clear about the date when you separated to make sure you do not miss the deadline. The claim can only be for payment of a capital sum. This means it is not possible to ask for transfer of ownership of the other cohabitant’s share of a house. It is not possible for a cohabitant to claim maintenance or aliment from their former partner for their own expenditure. The law is quite complex. The cohabitant who applies to court needs to show that they have suffered an economic disadvantage and that their former partner has derived an economic advantage. Where there are children under the age of 16 years it is also possible to make a claim (again, for a capital sum) to recognise the economic burden of care for looking after the children. That head of claim is separate from the possibility of applying to the child maintenance service for a maintenance assessment where you are a child’s primary carer.
It is important to bear in mind that whilst cohabitants can make financial claims, it is not possible to claim as much as a spouse or civil partner could.
A cohabitation agreement will typically include details on:
- Payment of household expenditure and other living arrangements
- Access to state pensions
- Next of kin rights in an emergency
- Division of assets in the case of a separation such as family home
- Financial support during or after the relationship
- Child support, custody or visitation rights
Under Section 28 (2) (b) of the Family Law (Scotland) Act 2006 it is possible for a cohabitant to seek the payment of a capital sum from their former partner requiring them to pay an amount in respect of any economic burden of caring, after the end of the cohabitation, for a child of whom the cohabitants are the parents.
Typical examples of this may include financial contributions of childcare costs, private school fees or a child’s extracurricular activity costs.
The law in relation to children is no different whether or not parents cohabited, were married or in a civil partnership. The important point is whether a person has parental responsibilities and rights (PRRs). So long as the father’s name is registered on the child’s birth certificate then he will automatically have PRRs. If his name is not registered, then it is possible to apply to court for an order for PRRs.
If you separate and have children under the age of 16 years and there is a dispute about the arrangements for the children which cannot be resolved, then either parent can apply to court for an order regulating the care arrangements. An example would be where one parent has primary care of a child (known as having residence – the term used to be custody) and the other wants to see their child more (known as asking for an order regulating contact – the term used to be access). Other examples would be if one parent wanted to move outside of the UK to live with the children (relocation) or if parents could not agree on matters concerning the children such as choice of school – these are known as specific issues.
If you have any questions about child custody and maintenance, seek independent legal advice. Our local family law solicitors are here to guide you through this difficult time.
An example of cohabitation is where two people in a relationship decide to move in together, so that they are then living together. That might involve one of them moving into a property already owned or rented by the other or the couple purchasing or renting a property together. They might then open up a joint bank account for payment of household outlays. They might start buying household items for the property, such as white goods and furniture. So, their lives become much more intertwined and linked.
Since cohabiting couples do not have the same legal protection as married couples or civil partners, it is worthwhile to consider drafting a cohabitation agreement in the event of your relationship breaking down. Our family law team is here to provide specialist expertise.
In Scotland, “common law marriage” is not recognised as a legal status, meaning there are no “common law husbands or wives.” People might refer to “common law marriage” when they actually mean “marriage by cohabitation with habit and repute.” This describes cohabiting couples who are seen as married by society even without a formal ceremony. However, in 2006, the law was amended, abolishing “marriage by cohabitation with habit and repute” except for couples who began living together before 4 May 2006. As a result, over time, fewer couples can claim this status.
A civil partnership is a legally recognized union between two individuals who are not related by blood. It grants couples, irrespective of their gender, the opportunity to formalize their relationship in the eyes of the law, offering them a range of legal rights and duties comparable to those of marriage. However, a civil partnership comes with its constraints: it can only be dissolved through death or a legal procedure in court.
The concept of civil partnership stems from evolving societal norms and the pursuit of equal rights. Historically, marriage, an institution that precedes documented history, was the sole option available for couples seeking legal recognition. The landscape began to change in the UK with the Civil Partnership Act 2004, which granted same-sex couples the chance to register their relationship legally. This was a significant milestone, especially when considering that until then, marriage was strictly between opposite sexes.
While marriage and civil partnerships share many legal similarities, the choice between the two often boils down to personal, cultural, or religious beliefs. Some individuals might resist traditional marriage due to its religious connotations or past experiences, while others may seek a fresh way to symbolize their commitment.
Seek legal advice. Contact our cohabitation law team
Harper Macleod’s family law team has decades of experience advising and supporting clients in relation to family law matters including cohabitation agreements, pre and post-nuptial agreements, separation and divorce/dissolution. Our specialist family lawyers will work with you to understand fully your circumstances and provide pragmatic legal advice and a solution that fits with your requirements. Contact your local team for an initial consultation.Call us today
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