What is cohabitation?

What is cohabitation?

Cohabitation is a term used to describe two persons who are or were in a relationship and living with one another, but are not married or in a civil partnership. Cohabitants can be both opposite sex couples and same sex couples.

Cohabitation is now more common than ever. More and more couples are choosing not to marry as a result of changing attitudes towards marriage, religion and gender roles. This societal shift has resulted in cohabiting couples becoming the fastest-growing household type in the UK. As a result, we are seeing a redefinition of modern family life which reflects the increase in couples who are not married by choice.

We know that moving in with a partner can be an exciting time. But it is also important to consider the legal implications of moving in with a partner, and how you can protect your assets in the event of separation or death. In Scotland we recognise that those who choose not to marry should not be subject to the same legal obligations as a married couple. However, this recognition of autonomy also means that the legal protection afforded to cohabitants on separation or death is lesser than the legal protection afforded to spouses or civil partners. Therefore, cohabitants are encouraged to seek the advice of an experienced family law solicitor when disputes arise.

Cohabitant rights

Cohabiting couples do not have the same legal rights and obligations as married couples or civil partners. This means unless there is a Cohabitation Agreement in place, cohabitants have no automatic right to claim anything in the event of separation or death. For example, should you die without a will, your partner has no automatic right to claim a share of your estate – regardless of how long you have been cohabiting. Therefore, your status as a cohabitant (and not a spouse) has an impact on significant relationship milestones including buying property, having children and inheritance.

However, our law does allow cohabitants to make a financial claim against their former partner. It must be made within one year of the cessation of the cohabitation. So, it is important to be clear about the date when you separated to make sure you do not miss the deadline. The claim can only be for payment of a capital sum. This means it is not possible to ask for transfer of ownership of the other cohabitant’s share of a house. It is not possible for a cohabitant to claim maintenance or aliment from their former partner for their own expenditure. The law is quite complex. The cohabitant who applies to court needs to show that they have suffered an economic disadvantage and that their former partner has derived an economic advantage. Where there are children under the age of 16 years it is also possible to make a claim (again, for a capital sum) to recognise the economic burden of care for looking after the children. That head of claim is separate from the possibility of applying to the child maintenance service for a maintenance assessment where you are a child’s primary carer.

It is important to bear in mind that whilst cohabitants can make financial claims, it is not possible to claim as much as a spouse or civil partner could. Therefore, the idea that ‘cohabitation then separation’ carries less risk than ‘marriage then divorce’ is inaccurate.

Cohabitation agreements

If you are in a relationship and thinking of moving in together or have been living together in a committed relationship for years and have chosen not to marry or enter into a civil partnership, then you can still get peace of mind through a cohabitation agreement.

A Cohabitation Agreement is a legally binding contact. Its purpose is chiefly to deal with what should happen in the (hopefully unlikely) event that the relationship breaks down or in the event of the death of one of the couple.

The Cohabitation Agreement can be tailored to your needs and be as detailed or as simple as you would like it. You can use it to structure your finances, for example if you are buying a property together and are contributing to the purchase unequally. You can use it to set out what should happen to the property if you were to separate, for example, whether it should be sold or ownership transferred to one or other of you. The Agreement can be used to regulate arrangements for payment of household expenditure such as monthly mortgage payments. If there are any children of the relationship, you can also use it to set out what would happen regarding the care arrangements for the children should the relationship break down. You can even use a Cohabitation Agreement to decide who will look after any pets in the event of separation.

Without a Cohabitation Agreement, there are limited remedies available to a cohabitant upon separation. Remedies can only be sought by way of an application to court and within one year of the relationship ending. Court can be expensive, time-consuming and stressful. Having a Cohabitation Agreement offers protection and peace of mind.

A Cohabitation Agreement can be signed at any point in the relationship. However, before you enter into a Cohabitation Agreement it is recommended that you seek independent legal advice. Whether you are just moving in together, or you have been in a relationship for a number of years, you can get in touch with one of our experienced family law solicitors for advice on Cohabitation Agreements.

Common law partner

The current cohabitation legislation defines cohabitants as an opposite sex couple ‘living together as if they were husband and wife’, or a same sex couple ‘living together as if they were civil partners’. However, this does not mean that cohabitation amounts to a ‘common law marriage’.

There is a common misconception that cohabiting with someone for a length of time creates a ‘common law marriage’. A recent study contained in the Scottish Law Commission’s Report on Cohabitation evidenced that almost half of all participants (47%) believed that a common law marriage currently exists. This is false. In Scotland, we do not recognise the concept of ‘common law marriage’. Cohabitants have no legal status and are not afforded the same rights as married couples or civil partners upon separation or death. Regardless of the length of the relationship or whether there are children of the relationship, cohabitants in Scotland will not become party to a ‘common law marriage’.

What is an example of cohabitation?

An example of cohabitation is where two people in a relationship decide to move in together, so that they are then living together. That might involve one of them moving into a property already owned or rented by the other or the couple purchasing or renting a property together. They might then open up a joint bank account for payment of household outlays. They might start buying household items for the property, such as white goods and furniture. So, their lives become much more intertwined and linked. Essentially, to cohabit is to coexist.