Although there has been financial provision for co-habitants on the breakdown of their relationship in Scotland for some fifteen years now, there still seems little public awareness of this, and ongoing confusion about what the differences are between separation as a co-habitant, and separation as a married couple.
Here, I go through some of the most frequently asked questions on this topic.
"We have been together twenty years - that means we have the same legal rights as a married couple, don't we?"
No, it doesn't, at least not in relation to separation. The legal regimes on divorce for a married couple and on separation of co-habitants are entirely different.
"But isn't there such a thing as common law marriage?"
Again, in short, no. This appears to be a long-enduring myth - that if a couple live together long enough, then the law will treat them exactly the same as a married couple. Again, for the purposes of separation and breakdown of the relationship, this is absolutely not the case.
What (perhaps confusingly) is available in terms of Scots law is another way to prove that a couple is married, called "marriage by co-habitation through habit and repute". This is a very old legal concept, which is being gradually phased out. This really harks back to a rather different age, where there was social stigma attached to an unmarried couple living together, and where it was more common for such a couple to present themselves to all of the outside world as being married. Given that times are rather changed, this form of marriage will not apply to the vast majority of co-habitants who have not gone through a marriage ceremony.
"So what rights do I have if we separate? And how are they different from marriage?"
In short, for a married couple, the starting point is to work out the "matrimonial property" (all the property that the couple has built up during the period of their marriage, including pension rights), value that, and then assess what a fair division of that would be. The starting point is an equal division, but there are various reasons why an unequal division might be fair. A married couple also has a duty to provide for each other by way of maintenance during the period of the marriage, and in some cases maintenance can extend for years after the date of divorce.
The situation is entirely different, and much more limited, for unmarried co-habitants, regardless of the length of time they have been together. For co-habitants, the legal test is quite complicated, but comes down to compensation - whether one party should be compensated for a net economic disadvantage suffered by that person in the interests of the other party or the children, or in relation to economic advantage derived from contributions made by that person. This can relate to money that a co-habitant has put into a house or other asset owned solely by the other party. It might also relate to a non-financial contribution made during the period of the relationship, such as giving up work in order to support the other person or look after children. The remedies which a co-habitant can seek are also much more limited than on marriage, with co-habitants being limited to a capital sum, whereas on divorce there is the option to seek maintenance, transfer of a house or any other asset, and also a share of the spouse's pension.
"So if we split up, what should I do?"
If you have split up from your co-habiting partner, and you are wondering if you might have a financial claim, you should investigate this sooner rather than later. The pressing reason for this is that there is a time bar on such claims. Any such claim needs to be with the court, and served on the other party, within one year of the date of your separation. Given that you may be dealing with the emotional fallout of a separation, and given that there might also be different perceptions on exactly when the relationship ended, this timeframe can be extremely short. You would therefore be well advised to take early legal advice, so that you can fully consider your options, without a last minute rush to court - or worse, being unable to make a claim.
If you have missed the one year deadline, there might be the option of being able to make a financial claim, under a different legal concept, called "unjustified enrichment". Again, you should contact a specialist family lawyer if you think this might apply to you.
"We are still happily together, but we are buying a house - do we need legal advice about that?"
It depends what is happening with the purchase, and in particular what money is coming from each person, but what an increasing number of co-habitants are doing is entering into an agreement regulating what will happen to their property if they do split up.
This is particularly important for couples where one person is putting in a much higher sum that the other. If you are taking title in joint names, and on an equal basis, then even if you have put £100,000 into the property, while your partner has put in £5,000, if there is no agreement regulating this (and unless you can make a successful claim on the basis set out above) the sale proceeds of the property would be split equally on any sale. If this is not what you want to happen, you would be well advised to have the security of an agreement in place. We do appreciate that this can be an added expense at a time when you are probably stretching yourself financially to buy a family home, but the security can be well worth it. To assist with planning your expenses, we offer fixed fee packages in relation to this.
If any of the above might apply to you, or if you would wish detailed individual advice, please do not hesitate to contact me or one of the other members of the team who will be happy to assist. You may also wish to listen to the podcast where these issues are discussed in more detail https://resolution.org.uk/podcast/
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