Many people assume that living together for years gives them the same legal protection as being married. In Scotland, that is not quite true, but you do have more rights than cohabitants in England and Wales. The Family Law (Scotland) Act 2006 gives unmarried partners who lived together the ability to make financial claims on separation, but the rules are strict, the deadlines are tight, and the outcome is far from guaranteed.
Does Scotland Recognise 'Common Law Marriage'?
The short answer is no. The idea of a "common law marriage" that gives you the same rights as a married couple is a myth in Scotland, just as it is across the rest of the UK. It does not matter how long you have lived together, whether you have children together, or whether you have shared finances for decades. You are not automatically treated as a spouse in the eyes of Scots law.
Scotland did once recognise a form of irregular marriage called "marriage by cohabitation with habit and repute," but that was abolished by the Family Law (Scotland) Act 2006. Since then, there is no route by which living together automatically creates marital rights.
What the 2006 Act did introduce, however, is a specific legal framework for cohabitants who separate. This is meaningfully better than the position in England and Wales, where cohabitants have very limited statutory rights on separation. If you are in Scotland, you may be able to make a claim, but only if you act quickly and meet the legal tests. This guide explains how that works in plain English.
It is worth noting from the outset that if you were married or in a civil partnership and are now separating, a different set of rules applies entirely. You can read more about that process in the complete guide to divorce in Scotland.
What Rights Do Cohabitants Have Under the Family Law (Scotland) Act 2006?
The Family Law (Scotland) Act 2006 created two main rights for cohabitants who separate. These are found in sections 28 and 29 of the Act, and they cover separation during life and death respectively. This guide focuses on section 28, which deals with financial claims when a cohabiting relationship ends.
Under section 28, either partner can apply to the Sheriff Court for a financial payment from the other after the relationship ends. The court has the power to order a capital sum (a lump sum payment) from one partner to the other. It does not have the power to make property transfer orders, periodical allowance (ongoing maintenance payments), or pension sharing orders in the way it can for divorcing couples.
This is a significant limitation. If you are separating from a long-term partner and the family home is in their name alone, the court cannot simply transfer ownership to you. What it can do is order them to pay you a sum of money that reflects the financial imbalance created by the relationship.
The court will consider two main questions when deciding whether to make an award:
- Has one partner suffered an economic disadvantage in the interests of the other partner or of any relevant child?
- Has one partner derived an economic advantage from contributions made by the other?
These concepts are similar in spirit to the principles used in divorce, but the bar is different and the outcomes tend to be more modest. The court has a wide discretion, and awards are not guaranteed even where disadvantage or advantage can be shown.
The One-Year Deadline: Why You Must Act Fast
This is the single most important practical point in this entire guide. If you want to make a financial claim as a cohabitant in Scotland, you must raise court proceedings within one year of the date of separation. This deadline is set out in section 28(8) of the Family Law (Scotland) Act 2006 and it is strict.
Unlike some legal time limits, there is very little scope for the court to extend this period. If you miss the one-year window, you will almost certainly lose the right to make a claim entirely, regardless of how strong your case might have been.
This has caught many people out. It is common for separating couples to spend months trying to negotiate informally, or simply not realising that a legal claim was even possible. By the time someone takes legal advice, the deadline has passed.
What counts as the "date of separation" is not always obvious. It is generally the date on which the cohabiting relationship actually ended, which may not be the same as the date one person moved out. If there is a dispute about the exact date, that can itself become an issue in proceedings.
The practical message is this: if you have separated from a cohabiting partner and you think you may have a financial claim, speak to a family law solicitor as soon as possible. Do not wait to see if things can be resolved informally. You can always pause or settle proceedings once they have been raised, but you cannot raise them once the year has expired.
Solicitors in Scotland typically charge between £150 and £400 or more per hour for family law advice. If cost is a concern, resources like this guide on divorce and separation costs can help you understand your options before you commit to anything.
How Does the Court Assess Economic Disadvantage and Advantage?
The core legal test under section 28 asks whether one partner suffered economic disadvantage in the interests of the other, or whether one partner derived economic advantage from the other's contributions. In practice, courts look at a range of circumstances to answer these questions.
Examples of economic disadvantage might include:
- Giving up a job or reducing working hours to care for children or support the other partner's career
- Moving to a new area for the other partner's work, leaving behind your own employment or support network
- Taking on caring responsibilities that limited your earning capacity over the course of the relationship
- Contributing financially to a property that is owned solely by your partner
Examples of economic advantage might include:
- One partner's career advancing significantly because the other handled domestic responsibilities
- One partner's assets increasing in value because of contributions (financial or otherwise) made by the other
- One partner accumulating savings or wealth while the other's resources depleted
The court will look at the whole picture of the relationship, including its length, the nature of any contributions made by each party, and the extent to which any disadvantage or advantage has already been balanced out. For example, if you gave up work for two years but have since returned to a well-paid role and suffered no long-term income loss, the court may find that the disadvantage has already been redressed.
It is important to understand that this is not the same as the "fair sharing" principle that applies in divorce. The court is not starting from a presumption that assets built up during the relationship should be split equally. The focus is specifically on disadvantage and advantage, which is a narrower test.
How to Raise a Cohabitation Claim in the Sheriff Court
Cohabitation claims under section 28 of the Family Law (Scotland) Act 2006 are raised in the Sheriff Court. Scotland has a network of Sheriff Courts across the country, and you would normally raise proceedings in the Sheriff Court for the area where the defender (your former partner) lives.
The type of procedure used depends on the value and complexity of the claim. Most cohabitation cases are raised using Ordinary Cause procedure, which is the standard route for contested family law matters in the Sheriff Court. This involves lodging an Initial Writ with the court, serving it on the defender, and then following the court timetable through to a hearing or a negotiated settlement.
In some straightforward cases where both parties agree on the outcome, it may be possible to resolve things by way of a joint minute or minute of agreement without a full hearing. However, if there is any dispute about whether a claim exists or how much should be paid, the case will need to go through the standard court process.
You will need to pay a court fee when lodging the Initial Writ. Fee levels are set by the Scottish Courts and Tribunals Service and are reviewed periodically. Fee exemptions are available for people on certain means-tested benefits.
Unlike divorce proceedings in Scotland, there is no simplified procedure available for cohabitation claims. The Simplified Procedure (which uses CP1 and CP2 forms and is designed for uncontested divorces) applies only to divorce and dissolution of civil partnership, not to cohabitation claims. You can learn more about that process in the complete guide to divorce in Scotland.
Given the complexity of these claims and the strict time limits involved, most people do instruct a solicitor. However, it is legally possible to represent yourself, and understanding the process before you take advice can make a real difference to how prepared and confident you feel.
Property, Children, and Other Practical Issues on Separation
Financial claims under section 28 are only one part of the picture when a cohabiting relationship ends. There are several other practical and legal issues you may need to deal with.
The family home
If the home is owned in joint names, both partners have an equal share of the property and both have the right to remain there. Selling the property or one partner buying the other out requires agreement, and if that cannot be reached, either party can apply to court for an order for sale. If the home is in one partner's name only, the other partner has no automatic right to remain there beyond what a cohabitation claim might achieve by way of a capital payment.
Cohabitants in Scotland do have some limited occupancy rights under the Matrimonial Homes (Family Protection) (Scotland) Act 1981, as amended, which means a non-owning partner can apply for occupancy rights if they do not already have them. This is a protective measure designed to prevent someone from being immediately forced out of the family home, but it is not the same as an ownership right.
Children
Arrangements for children are entirely separate from financial claims between the adults. Both parents have parental rights and responsibilities if the father is named on the birth certificate (for children born after 4 May 2006) or if they were married when the child was born. If parents cannot agree on living arrangements and contact, either can apply to the Sheriff Court for a Residence or Contact Order. The welfare of the child is always the court's primary consideration.
Shared debts and joint accounts
Any debts in joint names remain the joint liability of both partners regardless of separation. Joint bank accounts and credit agreements do not automatically close or change on separation. It is important to notify banks and creditors as soon as possible and to get independent financial advice about managing shared financial obligations.
If you are trying to understand the full financial picture of your separation, the free divorce financial calculator at Clarity Guide can be a helpful starting point, even if your situation involves cohabitation rather than divorce.
Protecting Yourself: Cohabitation Agreements and What to Do Next
The best time to think about your legal position as a cohabiting couple is before a relationship ends, not after. A cohabitation agreement (sometimes called a living together agreement) is a legal document that sets out how finances and property will be handled if the relationship ends. It can cover things like who owns what share of the home, how joint expenses are divided, and what happens to savings and assets if you separate.
Cohabitation agreements are legally recognised in Scotland. They are not automatically binding on a court in the way that a court order would be, but a well-drafted agreement made freely by both parties with independent legal advice is likely to carry significant weight. It can also prevent costly and stressful disputes by making expectations clear from the outset.
If your relationship has already ended and you are thinking about your next steps, here is a brief checklist of things to consider:
- Note the date of separation carefully, as your one-year deadline runs from this date
- Take legal advice as soon as possible, ideally within the first few weeks of separation
- Gather evidence of any financial contributions you made to the relationship, including payments towards a jointly used property, periods of unpaid caring work, or career sacrifices
- Do not move assets or close accounts in a way that could be seen as hiding resources
- Consider whether mediation might help resolve disagreements about property or children before going to court
If you are separating from a cohabiting partner and you are unsure where to start, Clarity Guide provides plain-English resources from £37 to help you understand your situation before spending hundreds of pounds on solicitor time. There is also a broader guide to cohabiting couples and legal rights on separation in the UK if you want to understand how Scotland's approach compares to the rest of the country.
Understanding your rights is the first step. You do not have to navigate this alone, and you do not have to pay for every answer.
Understand Your Rights Before You Pay for a Solicitor
Clarity Guide gives you clear, accurate information about separation and family law in Scotland, from £37, so you can make confident decisions without the uncertainty.
Get My Guide — from £37