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Romantic Misunderstandings

30th September 2014

There is a lot of confusion regarding the rights that people who live together (cohabit) have, compared to the rights couples have when they are in a legally recognised relationship e.g. marriage or civil partnership.  Here is the correct legal position regarding four of the most dangerous misunderstandings.

  • There is no such thing as a ‘common law marriage’, however long you have lived together.  Depending on the circumstances there may be some protection offered by the principles of trust and property law.  But claims based on these complex legal principles tend to be expensive to pursue and have uncertain outcomes.  
  • What happens to the family home when a cohabiting relationship breaks up can be complicated.  It will depend on a number of factors, including; how the property is held (who owns it and how), who has contributed to the upkeep, household bills and mortgage payments/purchase price, as well as who has paid for any repairs or renovations.  But a cohabiting partner cannot be sure that he or she will get back anything of the money that has been spent on the home (either by him or her, or in some cases contributions from family or friends) or even get an interest in the property if he or she is not a legal owner of the property.
  • You may not be entitled to live in the family home even if you have children with your ex-partner and even if you have the sole caring responsibility for those children.  What happens with the family home if you are cohabiting is governed by property law, rather than family law.  You might be able to make an application under family law to ask the court to say you can stay, but this can be a long and expensive procedure and the court could still say no.
  • If there is no Will, then the intestacy laws will apply.  These do not automatically entitle a cohabitant to their partner’s property if their partner dies.

The Family Law (Scotland) Act 2006 gives cohabiting couples in Scotland a little bit more legal protection but cohabitants in Scotland still have far fewer legal rights than married couples or civil partners.

How can I protect myself?

Formalise your and your partner’s intentions.  It may not sound very romantic but it may make a lot of difference in the long run.  Many couples find that having a proper talk about these serious issues actually improves their relationship.

There are several ways of putting things on a legally formal footing:

  • You can have a cohabitation agreement.  This is a document signed by you and your partner that sets out the agreement between you regarding any property and your intentions regarding any children.  It is best to have the cohabitation agreement written by a legal expert, usually a solicitor specialising in family law, in order to ensure that it contains everything you need.  Ensuring you both have independent legal advice can help make sure the agreement won’t be treated as invalid as it will be evidence that both people understood what they were agreeing and no-one was pressured into signing.
  • You can make sure there is a deed of trust for any money invested in the home (e.g. a lump of money to pay off the mortgage).  The deed of trust will say how the money should be considered in the event of the relationship breaking down and the courts will follow what it says unless there is an incredibly good reason not to do so.
  • Make sure you have an up to date Will and that it is legally valid.
  • Consider formalising your relationship by getting married or entering a civil partnership!


Next month – New employment law update

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