If you live with a partner in Scotland without being married or in a civil partnership, the law treats you differently from married couples, but also differently from cohabiting couples in England and Wales. Scotland has had specific, if limited, rights for cohabitants since the Family Law (Scotland) Act 2006. They can help if you separate or if your partner dies without a will. But they’re narrower than the rights married couples have, and they come with short, strict time limits that catch many people out.
This guide explains, in general terms, how Scots law currently treats cohabiting couples: what counts as cohabiting, household goods and money, claims on separation, what happens on death, the family home, pensions, benefits and tax, and proposals for reform. It’s general information, not legal or financial advice. A solicitor in Scotland, a regulated financial adviser or your pension scheme can explain how the rules apply to you.
General information, not legal, financial, pensions or tax advice
This guide explains how things generally work in the UK so you know what to ask. It is not advice about your situation, and Hearts Again is not a law firm, financial adviser or healthcare provider. Rules differ between England, Wales, Scotland and Northern Ireland and can change. Before you make any decision, speak to a qualified professional:
- a solicitor, for example through the Law Society (England and Wales), the Law Society of Scotland or the Law Society of Northern Ireland, or Citizens Advice for free initial guidance
- a regulated financial adviser (check they are on the FCA Register), or MoneyHelper, the free government-backed money guidance service
- your pension scheme administrator, MoneyHelper pensions guidance (including Pension Wise for people aged 50+), or the Pension Service about the State Pension
- HMRC or a qualified tax adviser, such as a Chartered Tax Adviser
The short answer
- Scotland gives cohabiting couples some limited legal rights under the Family Law (Scotland) Act 2006, but far fewer than married couples or civil partners.
- If you separate, a former cohabitant can ask a court for financial provision, but the claim must usually be made within one year of the relationship ending.
- If your partner dies without a will and was domiciled in Scotland, you may be able to claim from their estate, but only within six months of the death. You don't inherit automatically.
- There's no claim under the 2006 Act if your partner left a will, even if it leaves you nothing.
- Household goods bought during the relationship are presumed to be owned equally, unless shown otherwise.
- The Scottish Law Commission recommended reforms in 2022. Until new law is passed, the current rules apply.
- The rules in England, Wales and Northern Ireland are different.
Why this matters in later life
Many couples in their fifties, sixties and beyond choose to live together without marrying. Some don’t want to marry again after a divorce or bereavement. Some want to keep their finances separate for their children. Some worry about the effect of remarriage on pensions or benefits. All of these are understandable.
Later in life, though, there’s often more at stake: homes with significant equity, pensions, savings, and children and grandchildren from earlier relationships. Understanding how Scots law treats cohabitants can help you and your partner make informed choices. Our guide to whether to remarry, live together or live apart compares the options more broadly.
Who counts as a cohabitant?
Under the 2006 Act, cohabitants are two people who live together as if they were married or in a civil partnership. If there’s a dispute, a court looks at things such as:
- How long you’ve lived together
- The nature of the relationship while you lived together
- The nature and extent of any financial arrangements between you
There’s no minimum period of living together set out in the Act. But a short or casual living arrangement may not qualify, and each case depends on its facts.
The myth of common law marriage
As in England and Wales, there’s no “common law marriage” in Scotland today. Scotland used to recognise “marriage by cohabitation with habit and repute” in some circumstances, but that was largely abolished by the 2006 Act. Living together for many years doesn’t make you married in law.
Household goods and money
The 2006 Act includes some presumptions that apply to cohabitants:
- Household goods. Furniture, appliances and other household goods bought during the relationship (other than with gifts or inheritances to one partner) are presumed to be owned in equal shares, unless it’s shown otherwise.
- Household allowances. Money from an allowance one partner gives the other for household expenses, and anything bought with it, is generally presumed to be owned equally, unless agreed otherwise.
These presumptions don’t apply to the home itself, cars or most other significant assets, which are owned according to normal property law.
If you separate
The basic position
On separation, each partner generally keeps what they own in their own name, and jointly owned property is shared according to the title and any agreement. But Scots law also allows a former cohabitant to apply to court for financial provision under section 28 of the 2006 Act.
What a court can consider
A court can order one former cohabitant to pay the other a capital sum, and can also make an order relating to the economic burden of caring for a child of the relationship. In general terms, a court considers whether one partner has gained an economic advantage, and the other suffered an economic disadvantage, because of contributions made during the relationship. Contributions can include money, but also things like looking after the home or children, or giving up work.
These claims are discretionary, outcomes vary, and they’re generally more limited than the financial settlements available to married couples on divorce. The Scottish Law Commission has described the current test as unclear and overly complicated.
The one-year time limit
This is the most important practical point. A claim on separation must generally be made within one year of the date the couple stopped cohabiting. Once that time has passed, the claim is usually lost. Many people don’t realise this until it’s too late. A solicitor can explain how the time limit applies to your situation.
Cohabitation agreements
Some couples make a written agreement, often called a cohabitation agreement, setting out who owns what and what should happen if they separate. A solicitor in Scotland can explain how such agreements work and how they interact with the 2006 Act.
If your partner dies
If there’s no will
If your cohabiting partner dies without a will, you don’t automatically inherit under the Scottish intestacy rules in the way a spouse or civil partner would. However, under section 29 of the 2006 Act, a surviving cohabitant may be able to apply to court for provision from the estate, if:
- The deceased died without a will (intestate), and
- They were domiciled in Scotland immediately before their death, and
- The application is made within six months of the date of death.
The court has discretion. It considers factors such as the size and nature of the estate, any benefits the survivor receives because of the death (such as pensions or life insurance), and other claims on the estate, such as from children. An award can’t be more than a surviving spouse or civil partner would have received.
If there’s a will
If your partner left a will, there’s no section 29 claim, even if the will leaves you nothing. What you receive depends on the will. Scots law gives children and spouses “legal rights” to part of the moveable estate, but cohabitants don’t have legal rights. That’s one reason many cohabiting couples in Scotland talk to a solicitor about wills.
The six-month time limit
Six months can pass very quickly after a bereavement, especially while dealing with grief and practical arrangements. A solicitor can explain the time limit and whether a claim might be possible.
The family home
How the home is owned makes a big difference.
| Situation | General position |
|---|---|
| Owned by one partner | The other partner usually has no ownership share, though a section 28 or 29 claim may be possible in some circumstances |
| Owned jointly, with a survivorship destination | If one partner dies, their share usually passes to the other automatically |
| Owned jointly, without a survivorship destination | Each partner’s share passes under their will or the intestacy rules |
| Rented | Rights depend on whose name is on the tenancy and the type of tenancy |
A “survivorship destination” is a clause in the title deeds. A solicitor can explain whether your title has one and what it means for you. For renting, Shelter Scotland and Citizens Advice Scotland explain tenants’ rights.
Pensions, benefits and tax
Pensions
Whether a cohabiting partner receives survivor benefits from a workplace or personal pension depends on the scheme’s rules. Some schemes pay a pension to a cohabiting partner who was financially interdependent with the member. Others pay lump sums at the trustees’ discretion, often guided by a nomination or “expression of wish” form. Your pension scheme can tell you its rules. Our guide to what happens to your pension if you remarry explains how new relationships can affect pensions from a previous one.
Benefits
Means-tested benefits, such as Universal Credit and Pension Credit, generally assess cohabiting couples together, so moving in together can reduce or end one partner’s entitlement. Some benefits linked to a late spouse may also stop on cohabitation. Since February 2023, cohabiting partners with dependent children may be able to claim Bereavement Support Payment. Citizens Advice Scotland and GOV.UK explain current eligibility.
Inheritance tax
Inheritance tax is a UK-wide tax. The exemption for transfers between spouses and civil partners doesn’t apply to cohabitants, so gifts and inheritances between cohabiting partners may be subject to inheritance tax, depending on the estate. HMRC publishes guidance, and a solicitor, accountant or financial adviser can explain how it might apply.
Children
Cohabiting parents have the same responsibilities to their children as married parents. Unmarried fathers in Scotland generally have parental responsibilities and rights if they’re registered on the birth certificate, for births registered from 4 May 2006. Child maintenance works in the same way as for married parents. A family solicitor can explain how these rules apply.
Reform
In 2022, the Scottish Law Commission published its Report on Cohabitation (Scot Law Com No 261). Among other things, it recommended:
- A clearer definition of cohabitants
- Clearer principles for separation claims, focused on fair sharing of economic advantage and disadvantage, short-term hardship and childcare responsibilities
- A wider range of orders a court can make on separation
- Allowing courts some discretion to accept late separation claims
It didn’t propose changes to claims on death, which are being looked at separately. The Scottish Government has also consulted on wider family law reform. These are recommendations and proposals, not law. Until any new legislation is passed and comes into force, the current rules apply. We’ll update this guide if the law changes.
Married vs cohabiting in Scotland: a quick comparison
This is a very general summary. Individual circumstances vary, and a solicitor can explain how the rules apply to you.
| Situation | Married couples and civil partners | Cohabiting couples |
|---|---|---|
| Financial claims on separation | Broad rules on sharing matrimonial property | Limited section 28 claim, usually within one year |
| Ongoing support for a former partner | Possible in some cases | Not generally available |
| Inheritance without a will | Prior and legal rights for a spouse | Possible section 29 claim within six months, if domiciled in Scotland |
| Legal rights where there’s a will | Spouse has legal rights to part of the moveable estate | No legal rights |
| Inheritance tax between partners | Usually exempt | No spouse exemption |
| Household goods bought together | Shared under matrimonial property rules | Presumed owned equally |
Two illustrations
These simplified examples show how the rules can play out. They’re illustrations, not advice, and real cases depend on their own facts.
Example 1: separation. Ann and David lived together in David’s flat for eight years. Ann paid many household bills and reduced her working hours to care for David’s elderly mother. When they separated, Ann discovered that the flat was entirely David’s. She may have been able to make a claim under section 28 based on economic disadvantage, but she only spoke to a solicitor fourteen months after they split up, by which time the usual one-year time limit had passed.
Example 2: death without a will. Margaret and Ian lived together for twelve years in Ian’s house. Ian had adult children from his marriage and had never made a will. When he died, his estate passed under the intestacy rules to his children. Margaret, as a cohabitant, didn’t inherit automatically. She had six months from Ian’s death to apply to court under section 29. The court would then weigh up factors such as the size of the estate and his children’s claims.
In both examples, earlier advice and planning, such as a cohabitation agreement, title deeds or wills, might have led to a different outcome.
Moving between Scotland and England
If you or your partner have lived in both Scotland and England, which law applies can be complicated. For claims on death, for example, section 29 depends on the deceased being domiciled in Scotland. If you own property in both countries, or have moved recently, a solicitor can explain how the rules apply. Our guide to cohabitation rights in England and Wales explains the position south of the border, and our guide to long-distance dating covers relationships across distances.
Questions couples often discuss with a solicitor
If you live together or are planning to, these are questions many later-life couples in Scotland raise with a solicitor or adviser:
- How should we own our home, and do we want a survivorship destination?
- Should we have a cohabitation agreement?
- Do we each have an up-to-date will that reflects what we want for each other and our children?
- Have we completed pension nomination forms?
- How would moving in together affect our benefits or tax?
- What would happen if one of us needed care, and do we have powers of attorney?
The Law Society of Scotland’s Find a Solicitor service can help you find a solicitor, and MoneyHelper can help you find a regulated financial adviser. Citizens Advice Scotland offers free general information.
Talking about it as a couple
Money and legal arrangements can feel unromantic, but many couples find it helps to frame the conversation around looking after each other and your families. Our guide to money in later-life relationships has ideas for these conversations, and our guide to protecting your children’s inheritance explains how solicitors commonly approach blended families.
Frequently asked questions
Do cohabitants have rights in Scotland?
Yes, but limited ones. Under the Family Law (Scotland) Act 2006, a former cohabitant can make a financial claim on separation, and a surviving cohabitant can claim from an estate if there’s no will. Both have strict time limits.
How long do I have to make a claim if we separate?
Generally one year from the date you stopped living together. After that, the claim is usually lost.
Will I inherit if my partner dies without a will in Scotland?
Not automatically. You may be able to apply to court within six months of the death, if your partner was domiciled in Scotland. The court decides what, if anything, to award.
What if my partner left a will that doesn’t include me?
The 2006 Act claim for cohabitants only applies if there’s no will. Cohabitants don’t have legal rights to a share of the estate in the way children and spouses do.
Is there common law marriage in Scotland?
No. Marriage by cohabitation with habit and repute was largely abolished in 2006.
Is the law going to change?
The Scottish Law Commission recommended reforms in 2022, and the Scottish Government has consulted on family law reform. Nothing has changed yet.
Related guides
- Cohabitation rights in Northern Ireland
- Long-distance relationships between England and Scotland
- Cohabitation rights in England and Wales
- Should you remarry after 50? Marriage vs living together vs living apart
- Moving in or buying a home together after 50
- Protecting your children’s inheritance in a new relationship
- What happens to your pension if you remarry?
- Living apart together after 50
Sources
- Family Law (Scotland) Act 2006, sections 25 to 29 (summarised).
- Scottish Law Commission, Report on Cohabitation (Scot Law Com No 261, 2022), executive summary.
- Commentary on section 29 claims from Scottish legal practitioners (summarised).
- GOV.UK, Bereavement Support Payment and inheritance tax.
- Citizens Advice Scotland and Shelter Scotland.
- The Law Society of Scotland, Find a Solicitor; MoneyHelper.