Cohabitation Agreement and Cohabitation Rights in Scotland

Cohabitants are a man and woman who are or were living together as if they were husband and wife, or two persons of the same sex who are or were living together as if they were civil partners.   The Court has a wide discretion to determine whether or not a couple can be classed as cohabitants.  This is ultimately a matter of fact and the court will take into account a number of matters; including the length of time they lived together, the nature of their relationship and whether they had any shared finances during the time they lived together.

In looking at the nature of the relationship, the court will look at whether the couple were generally recognised as being a couple by their friends/family/colleagues (as opposed to flat mates, for example) and also the sexual relations and emotional support which existed between them.

There is no fixed period before a couple can be recognised as cohabiting. A very short period of living together may not be enough, but the longer the relationship goes on, the more likely it is that they will be recognised as cohabitants

If you live in the house as a cohabitant, you have no automatic Occupancy Rights (right to continue to live there) if you separate.  You can however apply to the court and ask the court to grant you Occupancy Rights to stay there.  If the court grants them, they are generally only granted for a period of six months initially but can be extended for further periods of six months.

If a cohabitant does not own the property (or is not named on the lease for a rented property) and they are subjected to domestic abuse by the other cohabitant, then they can apply to the court for an order to exclude the other cohabitant from the property, even though that person is the actual owner of the property.

The surviving cohabitant may make a claim against the deceased’s estate, but only if the deceased:

• Has not left a Will
• Was domiciled in Scotland immediately before their death, and
• Was cohabiting with the survivor in Scotland immediately before their death

Swift action has to be taken in these circumstances. The surviving cohabitant has to make an application to the Sheriff Court or the Court of Session within six months of the other’s death to preserve a claim on the estate.

The court has a wide discretion on the amount to award out of the estate. The award can be a cash sum or a transfer of an asset from the estate, for example a house or a car. In deciding on the amount, the court will consider the size and nature of the estate, any benefits which the survivor has derived from the cohabitant’s death (for example, payment from the deceased’s pension fund) and any other rights or claims which other people might have on the estate.

The survivor cannot be awarded any more than they would have been entitled to had the survivor been the spouse or civil partner of the deceased.

The starting point is that cohabiting couples have no automatic right to claim anything.  However, whilst cohabiting couples are not entitled to the same financial provision as married couples/civil partners upon separation; the law does enable cohabitants to make a financial claim against their ex partner.  There is no hard and fast rule which states what a cohabitant will be entitled to upon separation.

The court has a wide discretion but where a person can show that they have suffered an economic disadvantage as a result of their separation and their ex partner has in turn derived an economic advantage from that, then they can seek to make a claim.  There are different claims which can be made.  See question “what can I claim for financially if we separate?” below.

There are very strict timescales for making a claim and a claim must be brought within one year of the date the couple separated.  This means that a court action needs to have been raised and served on the other person before the one year anniversary has expired.

You can make a financial claim, but to a lesser extent than married couples or civil partners. One cohabitant may have to pay the other a capital sum if that cohabitant has derived economic advantage from the contributions of the other and  the other cohabitant has suffered some sort of economic disadvantage as a result. For example, one party may have given up work to look after the children of the relationship while the other built a successful career without having to worry about child care costs.

The court can also make a repayment of such amount as it decides in recognition of any economic burden of caring for a child of the relationship after the cohabitation ends. Any capital sum can be paid by way of a one-off payment or by instalments if necessary. Cohabiting couples cannot claim maintenance or aliment from their former partner to support themselves (although child maintenance can still be claimed in respect of any children of the relationship).

Under the statutory framework, it is assumed that each cohabitant has an equal share in all household goods acquired during the period of cohabitation. This assumption can be disproved if, for example, some of the goods have been acquired as a gift or inherited from a third party, or from their own funds. Household goods include such items as furniture, furnishings, white goods and ornaments but excludes money, securities, motor vehicles, caravans, pets and personal items such as jewellery.

Money or property deriving from this is assumed to belong to the cohabitants equally unless there is some agreement in existence to the contrary.

If you are joint owners of the house, then the starting point is that the title deeds will determine how much you are each entitled to if the property is sold.  Usually, the title deeds will provide that a couple own the property in equal shares.  However, it may be that that would result in an unfair division of the proceeds, for example if one person has contributed significantly more than the other.  An example might be where one person provided the entire deposit to purchase the property.  In that situation, it is normal to try to negotiate exactly how the proceeds should be divided upon sale, to take into account the difference in contributions.

If you do not own the house but your ex partner owns it, then you have no right to claim on the house itself.  However, you can still seek to claim a capital sum from your ex partner, to take into account certain financial or other contributions you have made towards the property.  This could include things like if you have contributed towards the mortgage or any home improvements to the property during the time you lived there.

If you separate from your partner, unlike married couples, you have no right to claim on the other’s pension.

However, if your partner has died, you may receive some of their pension benefits and/or death-in-service benefits if they have named you as a beneficiary under the scheme.  Even if you have not been named under the scheme, some schemes may make a financial award in your favour, particularly if you have children together who you have to care for, on the basis that you lived together.  This will normally be at the discretion of the pension trustees, who will have a wide discretion.

For many years it was recognised in Scotland that a couple could be married ‘by cohabitation with habit and repute’. To qualify, the couple had to be free to marry each other and to be believed to be married to each other by friends, relatives and the public at large. However, marriage by cohabitation with habit and repute was abolished in 2006, unless such cohabitation had begun before the 4 May 2006.

You and your partner should think about :

• Agreeing money and other matters, e.g. who will pay for what.
• The ownership of assets and whether a formal agreement should be entered into clearly setting this out (particularly where one person is perhaps providing the deposit for the property or more of a deposit than the other).
• Putting a Will in place.
• Whether entering into a cohabitation agreement detailing what will happen to assets in the event that one of you dies or the relationship breaks down.

Married couples have automatic rights to their spouse’s estate on death or breakdown of the marriage. Cohabitants require to make an application to the Court for financial provision in both of these circumstances and they must adhere to strict time limits when doing so – 12 months following the breakdown of a relationship and 6 months on the death of a partner. The range of orders the court can make in these situations is more limited than if the couple were married and because the court is afforded a great deal of discretion in these cases it can be difficult to be advise what award a court may make.