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Cohabiting in Scotland: Why You Need a Legal Agreement

In Scotland, a significant number of couples live together without being married or in a civil partnership. These cohabitating relationships, whilst not privy to the same explicit rights that married couples or civil partners enjoy, can still be legally recognised under Scots Law in certain circumstances. A Cohabitation Agreement can be an instrumental tool in protecting your rights and interests when you are living with a partner.

 

Understanding Cohabitation

Cohabitants are defined as a couple living together as if they are married or in a civil partnership. This is a factual question, sand the relationship and nature of the living circumstances are taken into consideration when assessing whether individuals are cohabiting.

The Family Law (Scotland) Act 2006, offers guidelines on what courts should consider when deciding if there is cohabitation for the purposes of the Act. The factors taken into consideration include the duration of cohabitation, the nature of their relationship during that time, and the nature and extent of any financial arrangements during that time.

The Court has a broad discretion to determine whether a couple can be classified as cohabitants. In assessing the nature of the relationship, the court will consider whether the couple was generally recognised as a couple by their friends, family, or colleagues, as well as the emotional support and sexual relations that existed between them.

The Rights of Cohabitants

If you share a home with your partner as a cohabitant and you are not named on the property title, you do not automatically have Occupancy Rights (the right to continue living there), if you separate. You are at risk of being removed from your home. You can however apply to the court and ask the court to grant you Occupancy Rights to allow you to continue to stay there. If granted, these rights are generally only given for an initial period of six months but can be extended for further periods of six months in certain circumstances.

Cohabitants also have rights in respect of property contents, and in some cases, a right to payment of a capital sum on separation via a cohabitation claim. You are not automatically entitled to a share of ownership of the property, even if you are the one that has been paying the mortgage.

The Importance of a Cohabitation Agreement

A Cohabitation Agreement can be a vital in preventing length and costly court action for unmarried couples. It provides a clear framework to overcome potential issues that may arise throughout the course of a relationship or in the event of a separation, covering financial matters, property ownership, and other relevant aspects.  When cohabitants separate there is a strict 12-month time limit to make any claim under the Family Law (Scotland) Act 2006.  Having a cohabitation agreement relieves much of the pressure associated with this time limit and provides comfort and clarity to know what will happen with certain assets.

What to Consider in a Cohabitation Agreement

When drafting a Cohabitation Agreement, couples should consider a range of factors:

  • Financial Arrangements: Agree on financial matters and who will be responsible for what expenses.
  • Asset Ownership: Determine the ownership of assets and consider entering into a formal agreement that clearly outlines this, especially where one party is providing more towards the purchase of an asset.
  • Will: It's crucial to have a Will in place, particularly if you're cohabitating. This ensures that your assets are distributed according to your wishes upon your death.  In the event a cohabitant was to die during the relationship there is a strict 6-month time limit to make any claim on the deceased’s estate.  If you have a Will in place this prevents the need for your partner to make any claim and therefore provides comfort to know that they will not need to make an application to the court within 6 months of the date of death.
  • Future Plans: Whether you plan to marry or not, it's essential to consider how assets will be divided if the relationship ends.

 

Seeking Legal Advice

If you're currently cohabitating or considering moving in with your partner, it's advisable to seek legal guidance on the law of cohabitation, your legal situation, and the options available to you should the relationship breakdown. Our specialist Family Solicitors can provide expert advice and guide you through the process of creating a Cohabitation Agreement.

Conclusion

While cohabitation might appear less complicated than marriage or civil partnership, it still involves legal intricacies that can't be overlooked and parties can in fact find themselves at greater risk than if they were married. A Cohabitation Agreement serves as a safety net for unmarried couples, providing clarity and protection. It's crucial for cohabitating couples to understand their rights and seek the help of a family solicitor to ensure they are legally protected.

 

For guidance on a Cohabitation Agreement today, contact our specialist Family Lawyers on 0141 478 9090 for our Glasgow office, 01224 002 556 for our Aberdeen office or Click here to make a free online enquiry.