Scotland’s cohabitation laws are among the most progressive in the UK, but they still fall well short of the rights enjoyed by married couples. If you live with your partner without being married or in a civil partnership, the law gives you only limited protection if you separate or if your partner dies. A cohabitation agreement is a practical, accessible way to take control. It allows you and your partner to set out clearly how your home, finances and possessions will be handled, both during your relationship and if it ends, removing uncertainty and giving both of you peace of mind.
More couples in the UK are choosing to live together without getting married. According to the Office for National Statistics, cohabiting couple families now make up around 17.7% of all families in the UK, up from 16.4% a decade ago, and Scotland’s Census 2022 reflects the same gradual shift away from marriage and civil partnership towards cohabitation. While some assume that living together for long enough creates the same legal status as marriage, that is simply not true. A cohabitation agreement in Scotland is one of the most useful steps couples can take to protect themselves, particularly if they are buying a home together, blending families or have unequal finances. This article explains what Scots law currently does and does not give cohabiting couples, what a cohabitation agreement can cover, and why it is worth considering from the outset rather than after a problem arises.
What does Scots law say about cohabiting couples?
The starting point is to be clear about what does not exist in Scotland: there is no such thing as common law marriage. The old doctrine of marriage by cohabitation with habit and repute was abolished by the Family Law (Scotland) Act 2006, and even before that it required far more than simply living together. No matter how long you have shared a home with your partner, you are not treated as married by the courts.
The 2006 Act does provide cohabiting couples with a limited set of rights. Sections 25 to 29 set out a statutory definition of cohabitant and provide for some practical protections. Section 26 creates a presumption of equal shares in certain household goods bought during the relationship. Section 27 does the same for money derived from a household allowance. More significantly, section 28 allows a former cohabitant to apply to the court for a financial award if the relationship ends, and section 29 allows a surviving cohabitant to apply for provision from a partner’s estate where the partner dies without a Will.
These rights are useful, but they are far narrower than what marriage provides. There is no automatic share of property, savings or pensions on separation, and no automatic right to inherit on death. Strict time limits apply, and any court application has to clear evidential hurdles that married couples simply do not face. The Scottish Law Commission published a Report on Cohabitation in 2022 recommending significant reform of section 28, including a clearer statutory test and a longer time limit for claims. The Scottish Government has been consulting on those proposals, but the existing law remains in force in the meantime.
What is a cohabitation agreement and what can it cover?
A cohabitation agreement is a written contract between two people who live together as a couple. It records, in a single document, how you intend to handle the practical and financial side of your relationship and what will happen to your shared assets if the relationship comes to an end. Provided it is properly drafted and signed by both of you, it is legally binding in the same way as any other contract under Scots law.
A well-drafted cohabitation agreement is highly flexible. It can deal with ownership of the property you live in, particularly if one partner already owned it before you moved in or if you bought together in unequal shares. It can record how household bills, mortgage payments and other expenses are split, whether you keep separate bank accounts or operate a joint one, and how any savings, investments or business interests will be treated. It can also cover everyday items that often cause disputes, such as furniture, vehicles, valuables and even pets.
For couples with children from a previous relationship, an agreement is also a useful place to set out arrangements that are not strictly legal questions but matter in practice. These might include how the costs of step-children will be shared, or what happens to a property already held in trust for a child if the relationship ends.
Property, finances and what happens on separation
Most disputes between separating cohabitants are about property and money. The home is usually the biggest single asset, and the position depends very much on whose name is on the title deeds. If you own the home jointly, you each have a share. If only one of you is named on the title, the other has no automatic right to the property, no matter how long they lived there or how much they contributed informally to the mortgage or to running the household. The contrast with the position of married couples in a Scottish divorce is stark.
Section 28 of the 2006 Act allows a former cohabitant to apply to the court for a capital sum or a payment for the benefit of a child, but only by showing economic disadvantage suffered for the benefit of the other partner, balanced against any economic advantage the other partner gained. In practice, claims of this sort are difficult to prove and the awards tend to be modest compared with what a divorcing spouse might receive. Crucially, a claim must be made within one year of the date you stopped living together. Miss that deadline and the right is lost.
A cohabitation agreement avoids all of this uncertainty by setting out the position in advance. You decide together what is fair, while the relationship is happy and you are both thinking clearly. If a separation does happen later, the agreement gives both of you a clear starting point and dramatically reduces the cost, delay and stress of resolving matters.
Children and parental responsibilities
Cohabiting parents need to think about a separate but related question: parental responsibilities and rights, often abbreviated to PRRs. A mother automatically has PRRs from the moment her child is born. An unmarried father acquires PRRs automatically only if he is named as the father on the child’s birth certificate, and only for births registered on or after 4 May 2006. For births before that date, or where the father is not on the birth certificate, he can acquire PRRs by a written agreement with the mother under the Children (Scotland) Act 1995, or by application to the court.
A cohabitation agreement is not the right place to resolve disputes about contact or residence with children. The welfare of the child is paramount, and questions about who a child lives with and how much time they spend with each parent are decided by reference to the child’s best interests, not by contract. However, an agreement can usefully record practical financial arrangements between the adults, such as who is responsible for nursery fees, school costs or holiday expenses while the relationship continues, so that both parties have a clear understanding from the outset.
If you are not married and you separate, child maintenance is dealt with through the Child Maintenance Service or, in some cases, by private agreement. This is independent of any cohabitation agreement and cannot be contracted out of.
What happens to a partner's estate if they die without a Will?
When a married person dies without a Will, their spouse has automatic legal rights and prior rights under Scots law and is now first in line for the free estate where there are no children. An unmarried partner has no equivalent automatic entitlement. Section 29 of the 2006 Act does allow a surviving cohabitant to apply to the court for provision from an intestate estate, but only if the deceased died without a Will, and only within strict time limits. The current limit is six months from the date of death. The Trusts and Succession (Scotland) Act 2024 has legislated to extend this to twelve months, but that change has not yet been brought into force, so for now the six-month deadline still applies.
Even if a section 29 claim is successful, the most a court can award is what the cohabitant would have received had they been the deceased’s spouse. There is no guaranteed minimum and no automatic entitlement, and the court has wide discretion. The simplest, cheapest and most certain way to protect your partner is to make a Will. Each of you should have a Will that names the other clearly, alongside any other beneficiaries you wish to include. Life insurance, pension nominations and any death-in-service benefits should be reviewed at the same time, as these often pay out independently of the Will. You can read more about the consequences of dying without a Will in Scotland in our recent article.
A cohabitation agreement and a Will work hand in hand. The agreement deals with what happens during the relationship and on separation; the Will deals with what happens on death. Most couples need both.
How and when should a cohabitation agreement be reviewed?
A cohabitation agreement is not a one-off task. Life changes, and the agreement should change with it. As a rule of thumb, you should review it whenever something significant happens: buying or selling a home, having a child, receiving an inheritance, changing jobs, taking on substantial debt, or starting a business. Many couples also choose to review their agreement every few years even if nothing dramatic has changed, simply to confirm that it still reflects their wishes.
The legal landscape is also worth keeping an eye on. The Scottish Law Commission’s 2022 reform proposals could, if enacted, change the way courts assess section 28 claims and introduce more flexibility around time limits. A solicitor advising on a cohabitation agreement today will draft it with current law in mind, but a periodic review ensures the document continues to reflect both your circumstances and the legal framework around it.
If you later decide to marry, the cohabitation agreement can be replaced or supplemented by a pre-nuptial agreement. The two documents do similar work, but a pre-nup is designed to deal with what happens on divorce rather than separation of unmarried partners, and it is sensible to take fresh advice when you change status. Couples who are still considering whether to take any of these steps may find our earlier article on moving in together a helpful starting point.
Why choose Pomphreys?
Pomphreys’ family law team has been helping couples across Lanarkshire and beyond for many years. We understand that talking about what would happen if a relationship ends can feel awkward, particularly when things are going well. Our approach is calm, practical and free of legal jargon. We will listen carefully to your circumstances, explain your options clearly, and draft an agreement that is fair, balanced and built to last. Whether you are just moving in together, buying a first home, blending two families or simply tidying up arrangements that have built up over time, we can help you put the right protections in place.
If you are thinking about a cohabitation agreement, or you would like to update an existing one, get in touch with our family law team for a friendly, confidential conversation about what would work for you and your partner.
Frequently Asked Questions about cohabitation agreements in Scotland
Is a cohabitation agreement legally binding in Scotland?
Yes. Provided it has been properly drafted and signed by both partners, a cohabitation agreement is a legally binding contract under Scots law. It can be enforced in the same way as any other contract. To stand up well in the event of a dispute, both partners should have taken independent legal advice, made full and honest disclosure of their finances, and signed without pressure.
What does a cohabitation agreement cover?
A cohabitation agreement can cover a wide range of practical and financial matters, including ownership of the home, contributions to the mortgage, household bills and savings, the treatment of jointly bought items such as furniture, vehicles and pets, what happens to inheritances or business interests received during the relationship, and how matters will be handled if you separate. It does not, and cannot, override the law on parental responsibilities, child welfare or child maintenance.
Can we write a cohabitation agreement ourselves without a solicitor?
Technically, yes, two adults can sign any contract between themselves. In practice, a homemade agreement is far more likely to be challenged later, particularly on issues like fairness, full disclosure and independent advice. Each partner should ideally take their own legal advice. The cost of doing so is modest compared with the cost of resolving a disputed separation without a properly drafted agreement.
What is the difference between a cohabitation agreement and a pre-nuptial agreement?
A cohabitation agreement is for couples who live together without being married or in a civil partnership. It deals with what happens during the relationship and if the couple separates without ever marrying. A pre-nuptial agreement is for couples who plan to marry and is designed to deal with what happens on divorce. The two documents cover overlapping ground but are governed by slightly different considerations, and they cannot be substituted for one another. If you are moving from cohabitation to marriage, your agreement should be reviewed and replaced.
