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Marriage v. Cohabitation


Marriage v. Cohabitation

There is a common misconception in Scotland that common law marriage exists and gives cohabiting couples the same legal rights as married couples.  That is not the case. 

So what is the difference between your rights as a married person and a cohabiting person in Scotland when your relationship comes to an end?

A married person needs to be divorced by a Court.  On divorce you are entitled to a “fair” share of the matrimonial property, namely, the assets which have been accumulated during the marriage.  In most cases, this will involve a 50/50 split of the assets.  There are however some circumstances where a 50/50 split of the assets is not considered fair, and one party may succeed in obtaining greater than 50% share of the assets. 

As a married person, you may also have the right to claim aliment (spousal maintenance) from your partner when the marriage comes to an end.

A named person also has clear rights of succession when the relationship ends by death of their spouse.

A cohabiting person does not have the same rights.  Unlike a married person, there is no automatic right to make a claim against your partner when the relationship comes to an end.  In Scotland, the Family Law (Scotland) Act 2006 came into force on 4 May 2006.  This legislation introduced limited financial provisions for cohabitants who have separated.  The two main provisions are:-

  • A cohabitant may bring a claim against their former partner for a capital sum but only in certain circumstances where it can be shown there has been an economic advantage to the other party in respect of the way they have run their finances throughout the relationship, or in respect of the economic burden of childcare. There also a strict time limit and so any claim must be raised against the other party within one year of the parties’ date of separation.  The Court has a wide discretion as to whether or not to award the payment of a sum of money.
  • A surviving cohabitant has the right to make a claim on the estate of a deceased cohabitant where there is no Will.  This type of claim must be brought to the Court within six months of the date of death.  The Court has discretion as to whether or not to make an award, and the amount awarded cannot exceed the amount that the surviving person would have been entitled to had the couple been married. 


Accordingly, if you are a cohabiting couple, you should give some consideration to what you would want to happen should the relationship come to an end, either by death of the other party, or otherwise.  It is recommended that you consult a Solicitor and discuss whether or not you require a Cohabitation Agreement.  A Cohabitation Agreement can set out what you would wish to happen in respect of finances should the relationship come to an end, as well as setting our financial arrangements that would apply throughout the period of cohabitation.  Essentially the Agreement can include as much or as little as you want, depending on your circumstances.

Cheryl Wallace is a Family Law Solicitor. If you require advice on cohabitation or marriage, or any other family law matter then please contact Cheryl on 01334 652285 or email cherylwallace@thorntons-law.co.uk

Posted by Cheryl Wallace

Associate

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