Family Law AssociationThe Law Society of Scotland
Glasgow 01413751222
Edinburgh 0131 278 3423

About Jones Whyte Law

4 minutes reading time (895 words)

Ultimate Legal Guide For Unmarried Couples

Cohabitation-Agreements Cohabitation Agreements

What is a cohabitant?

Cohabitants are couples who live together as if they were married or civil partners. Some rules that affect cohabiting couples have extra conditions that must be met, this will be explained in this blog.

  1. Common Law Marriage
  2. Importance of Cohabitation agreements
  3. Separation from Partner
  4. Children

Common Law Marriage

The idea that after a period of time couples will establish a common law marriage is false, marriage by cohabitation was abolished in the Family Law Act 2006. Even partners that have cohabited for many years do not have the same rights in law as a married couple. This means making a formal commitment is a serious one in which the potential ramifications should be understood. It is also important to note there are lower financial awards on separation, no maintenance after separation, limited inheritance rights and strict time limits for cohabiting couples.

This makes it important to make sure monetary matters are agreed upon, ownerships and assets are set out and protected, the contribution to household bills are established, a cohabitation agreement has been entered into and that a will has been made.

Importance of Cohabitation agreements

Cohabitation agreements are those which provide legal safeguarding and set out the main financial arrangements that rule the couple’s relationship. This helps avoid drawn-out and uncertain litigation that may arise if problems appear. This may contain, for example, the main financial arrangements of the parties, clarification of property ownership, and an arrangement for division of assets, may the relationship break down. As it is an enforceable, legally binding document, it is important that cohabiting couples consider legal advice before making such an agreement. Our Cohabitation Agreement Lawyers can advise you in greater detail about the benefits of Cohabitation agreements.

Separation from Partner

When cohabiting couples separate they have no automatic right to claim anything. The Family Law Act however, does provide couples some provisions to make financial claims against their former partners. The court has wide discretion but if a partner can show that they are at an economic shortcoming as a result of the separation, and the other partner has an economic gain from this, they may pursue a claim. There are time limits on this- the limit is one year since the date of separation.

While financial awards are lower, the court may also make a repayment as a result of any economic burden of caring for a child of the relationship, after the cohabitation ends. Any monetary amount can be paid either as a lump sum or by instalments, if required.

Cohabiting couples can’t claim maintenance or aliment for their former partner for individual financial support, although child maintenance can still be claimed in regards to any children of the relationship. Neither one of the partners is liable for the other’s debts unless one acted as a guarantor for the other or consented to joint liability. However, some separating couples are still liable for their ex-partners debts relating to council tax or a social fund loan.

Children

Parents are expected to have certain parental responsibilities for their children. These are known as parental rights, which help parents meet these responsibilities. Parents are expected to use these rights to do things which are in their children’s best interests. Certain responsibilities even extend to the age of 25 for those in education or training.

Under the Family Law Act 2006 these rights apply to parents married or not, if their names appear on the birth certificate. It is not necessary for both parents to be at the registration office at the time the birth is registered as long as authorisation is given in written form by the parent that is not present. Children born before 2006 will not be affected by these changes. If the child’s parents are married to each other at the time of conception or got married at a later date, then both parents automatically obtain parental responsibilities and rights.

Unmarried mothers have full parental responsibilities and rights over their children unless they have been removed by a court. If a child’s parents were not married then only the mother has parental responsibilities and rights. An unmarried father can obtain parental responsibilities and rights by: marrying the child’s mother, signing a Parental Responsibilities and Parental Rights Agreement with the mother, or by asking the court to give them to him.

Same-sex partners have no automatic parental responsibilities and rights for their partner’s child. However, if a child is conceived by donor insemination or fertility treatment on or after 6 April 2006 a same-sex partner can be the second legal parent.

Step-parents may also apply, as can grandparents, aunts and uncles. When making a decision about a child, the Sheriff will be concerned with the best interest of the child and not the parent. Depending on the child’s age and maturity, the child’s view may also be taken into account.

If more than one person has parental responsibilities and rights then, they do not have to ask each other about every decision they want to take for the child, only major decisions. They must agree if one of them wants to take the child away from Scotland on holiday. It is expected people parental responsibilities and rights always do what’s best for the child.

At Jones Whyte our team of family lawyers can advise you on the best legal options for your specific circumstances. 

Caveats: A Useful Tool
The impact of the ongoing Brexit uncertainty on th...

Take the First Step Now: Get Legal Advice

Invalid Input
Invalid Input
Invalid Input
Invalid Input
Invalid Input