Cohabitation Agreements

In the past, couples could set up home without having any financial obligations to each other. However from 4 May 2006, couples who choose to simply live together rather than marry, have been given certain new rights in Scotland, which could be significant in many cases.

The new rights are:

It is presumed that household goods (for example, furniture) acquired during the cohabitation will be shared equally

If one cohabitee provides an allowance to the other for joint household expenses, this allowance will be treated as belonging to both cohabitants equally

If a cohabiting couple separate, either cohabitant has the right to apply to the court for an order for payment of a capital sum for their own benefit and/or a further sum to reflect the additional burden of having to care for a child of the family. The court must take various factors into account in deciding matters.

Upon the death of a partner, the surviving cohabitee can claim certain inheritance rights if their partner died without making a Will.

Given the existence of these new rights, those wishing to purchase a property together, or those who have already done so, should consider entering into a “Cohabitation contract.” Such an agreement allows the couple to regulate their own affairs and state what they wish to happen should they ever separate.

Q: My partner and I are intending to buy a flat together – I am providing the majority of the deposit. Is there a way that I can protect myself?

A: If you and your partner sign a cohabitation contract, this agreement can narrate that you provided the majority of the funds and provide that, should you separate, this investment should be returned to you.

Q: My partner and I made a choice to cohabit, rather than marry as we didn’t want to have legal obligations towards each other. Can we “contract out” of the new law?

A: An agreement similar to a pre-nuptial agreement could be drawn up to achieve this. It is also important to make sure that your Will is up to date.