More couples than ever are choosing to live together without getting married. While it is an exciting step, many people are surprised to learn that simply living together does not give you the same legal protections as marriage. In Scotland, there is no such thing as a “common law marriage.” A cohabitation agreement can help protect both partners by setting out clear arrangements for property, finances and what happens if the relationship ends. Making a Will is equally important, as unmarried partners do not automatically inherit from each other. Taking early legal advice can help you enjoy your new life together with confidence and peace of mind.
Valentine’s Day, the start of a new year and the excitement of a recent engagement are all common reasons couples decide to take the next step and move in together. It is a wonderful time, full of plans and shared goals. However, amid the excitement, it is easy to overlook the legal side of things. Unlike married couples, those who simply cohabit have far fewer automatic rights if something goes wrong, or if one partner passes away. Understanding your legal position now, before any problems arise, is one of the best things you can do for your relationship.
The myth of “common law” marriage in Scotland
One of the most common misunderstandings in Scottish family law is the belief that living together for a certain period creates a “common law marriage.” It does not. This type of informal marriage was abolished in Scotland in 2006 and, even before that, it required far more than simply sharing a home.
The Family Law (Scotland) Act 2006 does provide some limited rights for cohabiting couples. For example, if you separate, you may be able to make a financial claim against your former partner, but only if you can show that you suffered an economic disadvantage during the relationship while your partner gained an economic advantage. Importantly, any such claim must be raised within one year of the date you stopped living together.
If your partner dies without a Will, you may be able to apply for financial provision from their estate, but only within six months of the death (soon to be increased to twelve months), and only if they died intestate.
These rights are limited compared to those available to married couples. There is no automatic right to a share of your partner’s property, pension or savings simply because you lived together. This is why it is so important to put proper legal arrangements in place.
What is a cohabitation agreement?
A cohabitation agreement is a legally binding contract between two people who live together. Think of it as a bit like a prenuptial agreement, but for couples who are not married. It sets out clearly how you will manage your finances, property and possessions during your relationship and, crucially, what will happen if you later separate.
A well-drafted cohabitation agreement can cover a wide range of practical matters. These might include who owns the property you live in, particularly if one partner already owns it or if you buy together in unequal shares. It can also set out how household bills and other expenses are shared, what happens to jointly purchased items such as furniture or a car, how any joint savings or investments are divided if you part ways, and arrangements relating to any pets.
Some couples feel that putting a legal agreement in place suggests a lack of trust or romance. In reality, the opposite is true. A cohabitation agreement removes uncertainty and prevents the kind of misunderstandings that can cause real damage to a relationship. It means that both of you know exactly where you stand, and that if the worst were to happen, the process of separating would be far less stressful and far less costly.
Why making a Will matters when you live together
When a married person dies without a Will, their spouse has automatic legal rights to a share of the estate under Scots law. An unmarried partner does not. If your partner were to pass away unexpectedly without a Will, you could be left with no right to the home you share, no entitlement to their savings or possessions, and facing an uncertain financial future.
While the Family Law (Scotland) Act 2006 does allow a surviving cohabitant to apply to the court for a share of an intestate estate, this is not guaranteed. Any claim must be made within six months, and the outcome depends on the court’s assessment of factors such as the length of the relationship and the financial arrangements between the couple. It is not the same as the automatic protections marriage provides.
The simplest and most effective way to protect your partner is to make a Will. Each of you should have a Will that clearly names the other as a beneficiary, if that is your wish. It is also worth reviewing other financial arrangements at the same time. Life insurance policies, pension death benefits and any nomination forms should be checked and updated to include your partner where appropriate. These are straightforward steps, but they can make an enormous difference.
If marriage or engagement is on the horizon
If Valentine’s Day has brought a proposal, congratulations. As you begin planning your future together, it may also be worth thinking about whether a prenuptial agreement would be appropriate.
A prenuptial agreement is not just for the wealthy. It can be particularly useful where one or both partners have significant assets, property, business interests or children from a previous relationship. In Scotland, prenuptial agreements are generally recognised and enforceable, provided they were fair and reasonable at the time they were entered into and both parties received independent legal advice.
Like a cohabitation agreement, a prenuptial agreement is about clarity and fairness. It allows both of you to agree in advance how finances and property would be handled in the event of a future separation, removing uncertainty and helping to protect family wealth or business interests. The key is to raise the subject early. Ideally, a prenuptial agreement should be discussed and signed well in advance of the wedding, giving both parties plenty of time to take legal advice and consider the terms carefully.
Practical steps for couples moving in together
Taking a few straightforward legal steps before or shortly after moving in together can save a great deal of stress and expense in the long run. Putting a cohabitation agreement in place is the single most effective thing you can do to protect both partners. It provides certainty and ensures that you are both clear about your rights and responsibilities from the outset.
Making a Will, or updating an existing one, is equally important. Without a Will, your partner has no automatic right to inherit, regardless of how long you have been together. Reviewing life insurance policies and pension nominations should form part of this process too.
If you are buying a property together, it is essential to agree at the outset how ownership will be structured. Will you own the property in equal shares or in proportion to what each of you has contributed? A solicitor can ensure the title deeds reflect your agreement and that both of you are protected.
None of these steps are about expecting the worst. They are about building a secure foundation for your life together. Couples who take legal advice early often find that the process is far simpler than expected and that it gives them real peace of mind.
Why choose Pomphreys?
Pomphreys’ family law team understands that discussing legal arrangements alongside the excitement of moving in together can feel a little daunting. Our experienced solicitors take a practical, down-to-earth approach, providing clear advice tailored to your circumstances. Whether you need a cohabitation agreement, a Will, help with property ownership arrangements or advice on a prenuptial agreement, we make the process straightforward and accessible.
Speak to us about protecting your future
If you are moving in with your partner, or thinking about doing so, a short conversation with a solicitor can help you understand your options and take the right steps to protect you both. Get in touch with Pomphreys today for a friendly, confidential chat about your situation.
Frequently Asked Questions about Moving in Together
Is there such a thing as common law marriage in Scotland?
No. The concept of marriage by “cohabitation with habit and repute” was abolished in Scotland in 2006. Simply living together, regardless of how long, does not create a marriage or give you the same rights as a married couple.
What rights do unmarried couples have in Scotland?
The Family Law (Scotland) Act 2006 gives cohabiting couples some limited rights. On separation, you may be able to claim a capital sum if you can show economic disadvantage. If your partner dies without a Will, you may apply for provision from their estate. However, these rights are far more limited than those available to married couples, and strict time limits apply.
What is a cohabitation agreement and do we need one?
A cohabitation agreement is a legally binding contract that sets out how you and your partner will handle property, finances and other practical matters during your relationship and if it ends. It is strongly recommended for any couple living together without being married, as it provides clarity and protection for both partners.
Will my partner automatically inherit if I die without a Will?
No. Unlike a spouse, an unmarried partner has no automatic right to inherit under Scots law. Your partner may be able to apply to the court for provision from your estate, but only if you die without a Will and only within six months of the death. Making a Will is the most reliable way to ensure your partner is provided for.
Are prenuptial agreements enforceable in Scotland?
Yes, in general. Scottish courts will usually uphold a prenuptial agreement provided it was fair and reasonable at the time it was signed, both parties received independent legal advice, and neither was pressured into signing. It is sensible to have one drafted by a solicitor well in advance of the wedding.
How much does a cohabitation agreement cost?
The cost will depend on the complexity of your circumstances. However, a cohabitation agreement is typically far less expensive than dealing with a disputed separation without one. Speaking to a solicitor early will give you a clear idea of the likely cost involved.
This article is by Sarah Lynch
Sarah Lynch, Managing Partner
Sarah Lynch is the Managing Partner at Pomphreys. Sarah studied at Dundee University, achieving a 2:1 LLB Honours degree in Scots Law. She then moved back to Glasgow to study the Diploma in Legal Practice, being one of only a small number of students to be offered a funded position for academic excellence achieved during the LLB. Sarah then secured a traineeship concentrating on Personal Injury before deciding to broaden her scope of work to all civil litigation. We recently caught up with Sarah to discuss her role in Pomphreys.
Tel: 01698 373 365
Email: sl@pomphreyslaw.com
