Family and Divorce Solicitors serving Inverness and the Highlands, Scotland

Safeguard your closest relationships through the expert legal advice of Innes & Mackay family solicitors

The composition of families in Scotland is changing.

Families involving cohabiting couples — who are neither married or civil partners — are now the fastest-growing type of family in the UK. The law in Scotland has adapted in order to reflect this.

The Family Law (Scotland) Act 2006 introduced a set of basic rights to protect cohabitants when their relationship breaks down or when a partner dies.

However, it’s important to understand that couples living together don’t have the same rights as married couples and civil partners. There’s no such thing as a ‘common law’ husband or wife.  

What Are My Rights On Separation?

After separating from your partner, you can apply to the court for a capital sum for your own benefit and/or a further sum to reflect the financial burden of having to care for a child. This can be a child of both of the parties or a child who has been accepted as a child of the family.

In deciding whether or not to make an order for payment, the court has to take account of:

• the extent to which either party has benefited from the contributions of their former partner and
• whether either party has suffered any economic disadvantage from within the relationship and/or due to responsibility for any child of the family. 

The court must then balance any economic advantage or disadvantage gained or suffered by either party.

“Economic advantage and disadvantage” includes gains/losses in capital, income and earning capacity.

What Are My Rights On Death?

If your partner dies and has made a will, the law remains unchanged. The terms of his or her will shall be followed.

However, if you cohabit with a partner who then dies without a will, the rules of intestacy do not account for you. 

You will need to apply to the court for financial provision out of your deceased partner’s estate. 

The court will consider:

• the size and nature of the estate
• any benefit received or to be received by the surviving partner
• any other claims on the estate, such as those of the deceased’s children
• any other matters which the court considers to be appropriate. 

Significantly, the court cannot award you a higher amount than you would have had right to had you been married or civil partners.

Any award to a cohabiting partner can only be made after:

• payment of inheritance tax
• debts have been cleared
• any prior or legal rights claims of a surviving spouse/civil partner have been satisfied.

If your partner is married but separated and has been living with you — their new partner — for a number of years, the rights of the former spouse/civil partner will still come first. 

The legislation is designed to give some rights to cohabitants but not the same rights as married couples.

The surviving cohabitant could be left with nothing.