Loading...
Loading...
Common law marriage does not exist in Scotland. It was abolished by the Family Law (Scotland) Act 2006. Despite this, 51% of people incorrectly believe cohabiting couples have the same rights as married couples. Cohabiting partners have no automatic inheritance rights, no spousal IHT exemption, and must apply to court within 12 months of a partner's death.
Common law marriage — the idea that couples who live together for long enough acquire the same legal rights as married couples — is a myth in Scotland. It was abolished by the Family Law (Scotland) Act 2006 and has not existed for decades. The belief persists despite being legally incorrect.
What "marriage by cohabitation and repute" was. Before 2006, Scots law recognised a form of irregular marriage known as "marriage by cohabitation and repute" — where a couple who lived together openly as husband and wife, with the general community believing them to be married, could be declared legally married by a court. This is now entirely abolished.
The legal reality for cohabiting couples. In Scotland today, cohabiting couples (regardless of duration) have no automatic rights to: - Inherit from a deceased partner (unless named in a will) - Claim spousal inheritance tax exemption (transfers between cohabitants are fully subject to IHT) - Share in a partner's pension on death (unless nominated) - Make financial claims in the event of separation (though limited rights exist under the 2006 Act)
What limited rights remain. The Family Law (Scotland) Act 2006 does give cohabitants some rights, but they are entirely discretionary and time-limited. If the relationship ends, a cohabiting partner can apply to court within one year for a financial settlement. If a partner dies intestate, the surviving cohabitant can apply within six months for an award from the estate. In both cases, the court exercises broad discretion — outcomes are uncertain and can be zero.
The inheritance tax gap. Transfers between spouses and civil partners are entirely exempt from Inheritance Tax. Transfers between cohabiting partners (including on death) are taxed at 40% above the nil-rate band. For a couple with a £500,000 estate who are not married, death of the first partner could trigger a significant IHT liability that marriage would have avoided entirely.
The protection. A will, Lasting Power of Attorney, and pension nomination solve most of the inheritance problem. A cohabitation agreement (legally enforceable contract) can address financial matters during the relationship. Legal advice is essential for any cohabiting couple with shared assets, children, or property.
No — there is no duration threshold that creates automatic rights in Scotland. A couple together for 30 years has the same limited legal status as a couple together for 1 year. The only time-relevant aspect is the limitation period for court applications after death (6 months) or separation (1 year). Duration of cohabitation is a factor courts may consider in those applications, but it creates no automatic entitlement.
Yes — a cohabiting partner has no right of legitim (the children's fixed share) and no prior rights (the spouse's automatic inheritance claim). If your will leaves nothing to your partner, they receive nothing from the estate — unless they successfully apply to court within 6 months of death under Section 29 of the Family Law (Scotland) Act 2006, which is discretionary. Making a will in favour of your partner is the only reliable protection.
Yes — for couples with shared assets, joint mortgages, or significant separate wealth. A cohabitation agreement is a contract setting out what happens to property and assets if the relationship ends. It can specify ownership percentages, what happens to the mortgage on separation, and maintenance arrangements. It doesn't create marriage-equivalent rights, but it significantly reduces ambiguity and potential court costs if things go wrong.