Cohabiting Couples & Property Ownership: What are my Legal Rights?

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For unmarried, cohabiting couples, financial rights don’t stretch too far. In fact, there aren’t many legal rights for unmarried couples at all, compared to married couples. However, as a result of changing attitudes towards marriage, and the development of modern lifestyles, more and more couples are choosing to cohabit without marrying, or engaging in a civil partnership. 

So, where does that leave them, legally?

Since 2006, cohabiting couples have been recognised under Section 25 of the Family Law (Scotland) Act, depending on certain factors. In this article, we’ll take you through the Family Law (Scotland) Act 2006, and your rights as a cohabitation partner, covering separation, death, and occupancy.

What is cohabiting?

Section 25 of the Family Law (Scotland) Act 2006 defines a cohabitant as:

  • A man or a woman who are (or were) living together as if they were married; or
  • Two persons of the same sex who are (or were) living together as if they were civil partners.

Prior to this Act, cohabitants did not have any of the legal rights and protections awarded to married couples, or those in civil partnerships. The Act aimed to address this gap, and provide some level of legal recognition and protection for cohabiting couples. 

When the court is deciding whether there are sufficient grounds for the purpose of the Act, they will look out for the following pointers:

  • The length of time the parties have been living together
  • The nature of their relationship during that time
  • The nature and extent of any financial arrangements in place during that time

It’s important to note that, to the courts, it’s irrelevant if one or both cohabitants are married to someone else outside the relationship.

The Family Law (Scotland) Act 2006 in relation to cohabiting couples

Financial Provisions

The Act provides for financial provision when a cohabiting relationship ends. A cohabitant may have a claim against their former partner for financial support, including the division of property, if they can demonstrate economic disadvantage or contributions made to the relationship.

Property Rights

The Act allows cohabitants to make claims for financial provision regarding their shared property. This includes the right to apply for an order for the transfer or sale of property, or for compensation if an agreement or arrangement has been unjustly terminated.

Death of a Cohabitant

The Act introduced provisions for cohabitants in case of the death of one partner. It allows a surviving cohabitant to make a claim on their partner’s estate provided that they do so within 6 months of the death.

Child-related Matters

The Act also addresses child-related matters for cohabiting couples. It establishes provisions for parental responsibilities and rights, allowing cohabitants to seek legal recognition of their rights and responsibilities towards their children. These provisions include issues such as contact, residence, and financial support for children.

A closer look at property rights for cohabiting couples

The Family Law (Scotland) Act 2006 introduced provisions regarding property rights for cohabiting couples in Scotland, which aim to address the distribution of property when a cohabiting relationship ends.

Ownership of Property

The Act recognises that cohabitants may acquire property together during their relationship. It acknowledges that both partners may have contributed financially or otherwise to the acquisition, maintenance, or improvement of property.

Termination of Cohabitation

When a cohabiting relationship ends, the Act allows a cohabitant to make a claim for financial provision in relation to their shared property. This means that if one partner has suffered an economic disadvantage as a result of the relationship ending, they may be entitled to seek a financial settlement.

Financial Provision Orders

The Act provides the court with the power to make financial provision orders regarding shared property. A cohabitant may apply for an order for the transfer or sale of property or for compensation if an agreement or arrangement has been unjustly terminated. The court will consider various factors, including the financial contributions, economic disadvantage suffered, and the interests of any children involved, in determining the appropriate financial provision.

Trusts of the Family Home

The Act also addresses situations where cohabitants may have an interest in the family home but do not have legal ownership. It allows a cohabitant to apply to the court for a declaration of their interest in the property if they can demonstrate financial contributions or a common intention to share in the ownership.

Property rights under the Family Law (Scotland) Act 2006 do not automatically grant cohabitants the same rights and protections as married couples or those in civil partnerships.

The Act purely provides a framework for addressing property issues, but the specific outcome will depend on the circumstances of each case. It is advisable for cohabiting couples to seek legal advice, and consider entering into legally binding agreements, such as cohabitation agreements or property agreements, to further clarify their property rights, and protect their interests.

Frequently asked questions about Family Law and cohabitation

What is a common law partner entitled to in Scotland?

The term “common-law” partner, husband, or wife, however often used, does not have a legal definition or specific legal status in Scotland. Scotland does not recognise “common law marriage/partnership”, or grant automatic legal rights and entitlements to unmarried cohabiting couples.

Do I have the right to live in my partner’s house if we’re not married?

As a cohabitant, you have no automatic right to continue to live in your partner’s property (Occupancy Rights) if you and your partner were to separate.

You can apply to the court, and request the court to grant you Occupancy Rights, if you think you fulfil the legal criteria of a cohabitant. If you’re successful, and are granted Occupancy Rights by the court, they are usually only applicable for a period of six months, but, under the extenuating circumstances, can be extended for another six months.

However, if a cohabitant, who does not own the property, or is not named on the lease, is subject to domestic abuse by their cohabiting partner, they can apply to the court for an order to exclude the perpetrating cohabitant from the property. In this instance, it doesn’t matter if the perpetrating cohabitant is the owner of the property.

Do I have the right to rent out a house I cohabit in?

If both names of the cohabiting couple are on the title deeds, cohabitants have the right to rent out the property. However, both cohabitants must agree to it. So, if you want to rent out the property, you must have the permission of the other cohabitant.

What happens if my partner dies, and we are not married?

In Scotland, the surviving cohabitant can make a claim against the deceased cohabitant’s estate, under the following conditions:

  • The deceased cohabitant has not left a Will.
  • The deceased was residing in Scotland, with permanency, immediately before their death.
  • The deceased was cohabiting with the survivor immediately before their death.

To make a claim on the estate, the surviving cohabitant must make an application to the Sheriff Court, or the Court of Session, within 6 months of their cohabiting partner’s death.

If the claim is successful, the court can award a cash sum, or the transfer of an asset from the estate, such as a house or a car. In deciding on the amount, the court will consider:

  • The size and nature of the estate.
  • Any benefits the survivor has gained from the cohabitant’s death; for example, a payment from the deceased’s pension fund.
  • Any other claims or rights, from others, on the estate.

What am I entitled to if I separate from my partner?

Cohabiting couples are not automatically entitled to anything when they separate from their partner. However, separating cohabitants can make a financial claim against their ex partner.

If an ex cohabitant can show the court that they have suffered an economic disadvantage, as a result of the separation, and their ex parter has gained an financial advantage from the separation, they have grounds for a claim.

Claims must be brought forward within a year of the separation date. Court action needs to have been raised and served to the ex partner within that year timescale.

Can I claim the house if I separate from my partner?

If the cohabitants are joint owners of the house, the title deeds will determine how much you are entitled to if the property is sold, which is usually in equal shares. However, if it’s found that one person has contributed more, financially, to the property, or, for example, one person paid the majority/the sum of the deposit, there are grounds to negotiate how the sale proceeds should be divided.

If only one of the cohabitants owns the house, then the other cohabitant has no right to claim the house, or any sale proceeds. However, it’s possible to make a claim for a capital sum from the house owner, if financial contributions have been made.

How can we help?

If you’re thinking about moving in with your partner, or are currently cohabiting, the best thing you can do is seek legal advice to protect and leverage your cohabitation rights.
Call us today on 0141 433 2700, or fill out this simple contact form, for a free, no-obligation consultation.

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