There's no such thing as a common law marriage – raising awareness of cohabitants' legal rights

Cohabitants are the fastest growing family type in the UK, with 3.3 million cohabitant couples residing together. However, contrary to popular belief, there is no such thing as a 'common law marriage'. Indeed, a recent poll south of the Border has found that there is a significant lack of understanding of the level of legal protection available to people who choose to live together, and their rights to wealth built up during their relationship.

Resolution – England and Wales' national group of family lawyers – is this week running 'Cohabitation Awareness Week' in an attempt to raise awareness of the legal situation in England and Wales.

The organisation has highlighted its concern that millions of cohabiting couples are facing a substantial financial risk given the extent of the apparent lack of understanding of the current laws.

The poll conducted by Resolution found that two thirds of individuals in a cohabiting relationship were unaware that there is no such thing as 'common law marriage'. It therefore appears that millions of individuals in cohabiting relationships south of the Border could be unware that they have little protection.

Family Law Cohabitation Scotland Couple Living Together

The law applying to cohabitants in Scotland

While the situation in Scotland is different to that south of the Border, there is still no such thing as a common law marriage.

Our Family Law (Scotland) Act 2006 has provided a limited set of statutory based rights for cohabitants. The most significant of these - found in sections 28 and 29 – provide the basis for potentially significant financial claims at the end of cohabitation in Scotland.

Section 28 provides the basis for cohabitants to make an application to the court for financial provision within one year of the cessation of the cohabitation, where cohabitation ends otherwise than by death. In such situations, the court can make certain orders, namely:

  1. An order for the payment of a capital sum to the applicant;
  2. An order requiring the non-applicant to pay a sum in respect of any economic burden of caring after the end of the cohabitation for a child of the former cohabitants;
  3. Any interim order the court considers appropriate.

In deciding whether to make any of the above, the court will look at whether (and the extent to which) one cohabitant has gained an economic advantage from contributions made by the applicant cohabitant. Further, it will look at whether (and the extent to which) the applicant cohabitant has suffered economic disadvantage in the interests of the other cohabitant, or relevant child of the cohabitants.

Section 29 provides the means by which a surviving cohabitant can make an application for provision within six months of the death of a cohabitant. For a claim to be made, the deceased cohabitant must have died intestate and must have been domiciled in Scotland immediately before his/her death. The surviving cohabitant must also have been cohabiting with the deceased immediately prior to the death.

The benefits of a pre-cohabitation agreement

Despite these provisions, it is clear that – like the position south of the Border – there remain common misconceptions in Scotland about the position of cohabitants, particularly around the assumption that a period of cohabitation can create 'common law' husbands and wives. There are no such concepts in Scotland.

Likewise, there is no automatic entitlement afforded to cohabitants in Scotland to share in wealth built up during the period of a cohabitant relationship.

Cohabitants are advised to take early advice in the event their relationship comes to an end, particularly given that the time deadlines for claims are imposed very strictly. Further, given the restricted nature of the protections to cohabitants in Scotland, cohabitants are advised to consider the benefits of entering into pre-cohabitation agreements which set out what will happen in the event of a separation.

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