People who live together as man and wife/civil partners and same sex couples who are not married need to consider the implications of their relationship breaking down or what would happen in the event of their partner’s death. There are many complex aspects which affect legal ownership of assets – here are just a few to get you thinking.

Common Law marriage does not exist in Scotland.

It is a common misunderstanding that a couple will have established a common law marriage once they have lived together for a period of time. This is not the case. The term ‘common law marriage’ is not one we use in Scotland. Even if you have lived with your partner for many years, there are limited circumstances in which you would be able to make an application to the court which would place your relationship on a par with that of a married couple/civil partnership. As a result, most cohabitants will not have the same rights as a married person or a person in a civil partnership at the end of the relationship, whether as a result of separation or of one party’s death.

The law is complex in this area and that is why it is important to take advice at the early stages of a house purchase.

The Family Law (Scotland) Act 2006, which came into force on 4th May 2006, provides, amongst other things, rights for cohabiting couples. If you have lived together as husband and wife or civil partners there are some basic rights to protect you if your relationship breaks down or if a partner dies. However, these rights are not automatic and you must make an application to the court to enforce them within one year of the date of a separation from your partner and within 6 months of the death of your partner. The law in respect of the death of a partner is clear, cohabitants do not have the same rights as married couples and civil partners. The position with cohabitants on separation is presently more uncertain.  The legislation allows the court a large amount of discretion in considering what financial provision, if any, should be made to a cohabitant.

You can regulate what happens in the event of a separation or death by drawing up a Co-Purchase Agreement which will regulate the distribution of the proceeds of sale in accordance with the terms of the Co-Purchase Agreement. 

Click here to find out more about MAKING A WILL

Click here to find out more about a CO-PURCHASE AGREEMENT