Increasingly, more and more couples are choosing to cohabit, either before or rather than marrying, and need advice on the end of a cohabiting relationship. Our team is experienced at advising clients dealing with the consequences of the breakdown of a cohabiting relationship, whether due to separation or death.

What is cohabitation?

Cohabitation refers to the living arrangement of an unmarried couple who are living in the same property while being in a long-term relationship which is comparable to a marriage.

What constitutes cohabitation in Scotland?

The Family Law (Scotland) Act 2006 updated Scots law to reflect the way many couples now choose to live. The Bill addresses couples who live together in the same way as a husband and wife and set out what their responsibilities are towards each other, and any children, should that relationship end.

A cohabitant is defined as "either one of a couple who lives together (or lived together) as if they were husband and wife or civil partners.”

What rights do cohabiting couples have on separation?

The 2006 Act sets out the following rights for cohabiting couples who are separating:

  • If it cannot be agreed who owns household goods, the law will assume joint ownership and the goods, or the value of the goods, must be shared.
  • From allowances made by one of the couple for household expenses or any properties bought using that money, an equal share of the money will be derived. This does not apply to the house in which the couple lives in. 
  • Courts can be asked to examine the case for financial provision as a result of decisions made during the relationship which have led to one partner becoming financially disadvantaged. This refers to cases in which one partner has sacrificed their career to look after children, reducing their capacity to earn money once a separation has occurred.
  • There is an assumption that childcare costs will be shared by both parents if they had the children together.

What rights do cohabiting couples have on death?

If a cohabiting partner dies and has not left a will, the surviving partner will not automatically be entitled to proceeds from the estate of the deceased partner. In some cases, this could mean that the surviving partner is required to move out of the property which they shared together. In these situations, the surviving partner has the right to ask the court for its consideration in giving them a share of the estate.

Why should I have a cohabitation agreement?

A cohabitation agreement can provide certainty and security in the event of the end of a cohabiting relationship.

Your rights are limited without one, and you may have to enter a stressful and costly legal battle for financial provision if your relationship breaks down or your partner dies.

A cohabitation agreement will have been put in place by you and your partner, with the help of an expert solicitor, to provide a legally enforceable arrangement to fairly and reasonably provide for both parties in the event of a separation.

Get the best legal advice

Drummond Miller are experienced in providing professional, straight-forward guidance to people facing the end of a cohabiting relationship, either than by separation or death.

To discuss this further contact our friendly Family Law team in complete confidence.

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