Cohabiting Couples in Scotland: What happens if you separate?

In Scotland, cohabitants are defined as, a man and woman who are living together, or two persons of the same sex who are living together as if they are married or civil partners. In determining whether a couple are to be considered cohabitants, a Court will consider many factors including, the length of time the couple have lived together, the nature of their relationship and the nature of any financial arrangements in place during their relationship.

How are your finances treated?

When you are in a cohabiting relationship, your personal assets generally remain your individual property, in the event of separation. The exception to this is household goods, acquired during the cohabitation. There is a presumption that each person has an equal right in household goods acquired during the time they lived together, such as furniture and white goods. This presumption does not apply to money, securities, vehicles, or domestic animals (pets).

If you own a home with your former cohabitant, when you separate, the starting place is that ownership of the property will be divided according to how it was registered in the Land Register of Scotland at the time of purchase. This is usually, jointly and equally. If the title to the home is held equally, then you will be deemed to be entitled to a 50/50 share in its value. This situation can leave some former cohabitants disadvantaged, which is why the law makes certain provisions to try to redress any economic imbalance encountered on separation.

Rights upon Separation

Cohabitants, unlike married couples, do not have automatic rights to each other’s property, pensions or assets upon separation or death. However, the Family Law (Scotland) Act 2006, provides a mechanism for cohabitants to make a claim if they have suffered ‘economic disadvantage’ during the relationship. The legislation provides a cohabitant with the right to make a ‘capital claim’ (a claim for a sum of money.)

This, in short, provides for one party to make a legal claim against the other, if they have suffered economic disadvantage, to the other person’s economic advantage. For example, if you bought a property together, but one person contributed significantly more to the deposit, or if one party gave up working to care for the children of the relationship, whilst the other has built a successful career.

The legislation does not provide cohabitants with the right to seek a transfer of property. There is also no provision for claims for aliment or maintenance. i.e. ongoing monthly payments from one partner to support the other. If you have children, Child maintenance is considered separately and can still be claimed.

If a Court action is necessary, there are strict timescales in place for actions of this kind. Any claim must be made within one year of separation. As a Court action takes some time to raise, and Court papers require to be served on the other party, you should allow plenty of time before the year comes to an end. If you have separated and believe you have a claim against your partner, you should seek legal advice as soon as you can. A solicitor may be able to assist you to negotiate with your ex and avoid litigation, if you have been unable to come to an agreement directly between you.

Rights upon Death

The Family Law (Scotland) Act 2006 provides for cohabitants to make a claim if their partner has died. The surviving partner must make a claim to the Sheriff Court or Court of Session within 6 months, for their claim to be considered.

A claim can only be made if the deceased partner did not have a will, was domiciled in Scotland immediately prior to their death and the surviving partner was living with them at the time of their death.

The claim itself can vary and can be a cash sum, or the transfer of a particular asset from the deceased partner’s estate. The Court has wide discretion and will consider various factors, such as, the size and nature of the estate, any other benefit the survivor may have received following the deceased partner’s death, such as payment from a pension fund, and the claims other people might have on the estate, such as the deceased parter’s children.

Cohabitation Agreement

If you are in a cohabitant relationship or considering buying a home with your partner, you should consider your financial position. Though it is never nice to consider what would happen if your relationship ended badly, it is better to be safe than sorry.

A Cohabitation Agreement is a formal agreement, or contract that can be prepared to outline what will happen with the assets of your relationship in the event of separation. If you have purchased or are considering purchasing a property with a partner a Cohabitation Agreement is recommended, as it could save a lot of time, upset and money in the future.

If there is no agreement in place, and you cannot agree as to how your joint assets should be divided after separating, you may be left with little option but to raise a Court action. Litigation is an expensive, lengthy and stressful process, and because of the Courts wide discretion for cohabitant claims, there is no guarantee what the outcome will be.

We would urge you to contact us to receive advice as to your legal rights, and to protect your position if any of the following circumstances apply to you:

1. You are planning to move in with your partner or purchase a property together.
2. You have contributed toward the purchase of a property in unequal shares and do not have an Agreement in place to regulate those ownership shares/contributions.
3. Your relationship has come to an end, and you consider your period of cohabitation to be over.
4. You believe that your financial contributions have not been accurately recorded and consider that you may have been financially disadvantaged.

Article by Emily Ross

Contact our Family Law Team on 01463 239393 or email court@macandmac.co.uk