Cohabitation, Pre and Post Nuptial Agreements

Living together does not give you the same legal rights as being married or in a civil partnership. In Scotland, there is no automatic "common law marriage". Cohabitants have some legal protection, but it is limited, fact-specific and often depends on acting quickly.

What counts as cohabitation?

A couple may be treated as cohabitants if they live together as if married or as if in a civil partnership. The court can look at how long they lived together, the nature of their relationship and the extent to which their finances were linked.

What if you separate?

Separating cohabitants should take advice as soon as possible, particularly where there is a jointly owned home, unequal financial contributions, children, or one partner has given up work or opportunities for the relationship or family. Early advice can help clarify who owns what, whether a financial claim may be available, how the home should be dealt with, and what steps must be taken before the strict one-year deadline expires.

If cohabitants separate, the court may be able to make a financial award where one partner has gained an economic advantage and the other has suffered an economic disadvantage. This is not the same as the financial claims available on divorce, and any court claim must usually be raised within one year of separation.

Be clear about ownership from the start

What is in one person's name will usually start as that person's asset. What is in joint names will usually be treated as jointly owned. If one partner is paying towards a house, mortgage, renovations or family expenses, it is important to record what those payments mean, who makes them, and why.

Do not rely on assumptions

Many disputes arise because couples assume that paying bills, helping with a deposit, or living together for many years creates automatic rights. It may not. If something is intended to be shared, protected, repaid or kept separate, say so in writing.

Use a cohabitation agreement

A cohabitation agreement can record who owns what, how household costs will be met, how contributions are treated, and what should happen to the home, savings, debts or other assets if the relationship ends. It can protect assets brought into the relationship, reduce uncertainty, avoid misunderstandings and make separation less stressful by giving both partners a clear agreed framework from the start.

Marriage changes the picture

If a couple later marries or enters a civil partnership, different legal rules apply. Assets may become relevant to financial provision on divorce depending on when and how they were acquired. Couples should consider whether a pre-nuptial or post-nuptial agreement is needed to protect family wealth, business interests, inheritances, gifts or property bought before marriage.

Make a will

A surviving cohabitant does not have the same automatic inheritance rights as a spouse or civil partner. If one partner dies without a will, the survivor may have to apply to court and any claim must usually be made within six months of death. A clear will is one of the simplest ways to protect each other and avoid uncertainty.

Review life cover, pensions and nominations

Protection is not only about the house. Couples should check life policies, pension death benefits, nominated beneficiaries and any workplace benefits. These may not pass automatically to a partner unless the right paperwork is in place.

Keep records of major contributions

Good records matter. Bank transfers, deposit payments, renovation costs, loan agreements, messages about shared intentions and evidence of childcare or career sacrifices can all be important if there is later disagreement.

Take advice early

The best time to protect assets is before there is a dispute. Early legal advice can help couples make informed decisions, avoid misunderstandings and put clear arrangements in place for separation, marriage or death.