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Marriage v. Cohabitation

Marriage v. Cohabitation

With cohabiting couple families on the increase, family law solicitor Cheryl Wallace considers the different rights of cohabiting and married couples.

Last week a local newspaper reported that modern pressures are taking their toll on marriages.

Although the most common family type in 2015 was married or civil partner families, cohabiting couple families (unmarried couples living together) are the fastest growing family type in the UK. 42% of Dundee people describe themselves as “never married singles”, which may include cohabiting couples. Accordingly it seems that marriage is falling out of fashion.

Why are less people getting married these days? Various factors have been blamed such as financial problems, young people who are more career focussed, and a change in perceptions in respect of having children out of wedlock. Advances in technology are thought to have brought extra pressures to marriage with social media and online sites making it easier to meet new people, or re-connect with people from your past.

One worrying point about all of this is the common misconception throughout the UK that common law marriage exists and gives cohabiting couples the same legal rights as married couples. That is not the case.

So what then 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 matrimonial property, namely the assets 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 share is not considered fair, and one party may succeed in obtaining a greater than 50 per cent share of the assets. A married 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. In Scotland, the Family Law (Scotland) Act 2006 came into force on 4th 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 a former partner for a capital sum but only in certain circumstances where it can be shown that there has been an economic advantage/disadvantage or the economic burden of childcare. The claim must be brought within one year of the parties’ separation.
  • 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 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 in a cohabiting couple you should  give some consideration to your position should the relationship come to an end, either by the 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 wish to happen in respect of finances should the relationship come to an end, as well as setting out financial arrangements that will apply throughout 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

Posted by Cheryl Wallace


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