What is common law marriage?

Common law marriage or common law husband or wife are terms sometimes used to describe a couple who live together but who have not married nor entered into a civil partnership. Despite popular belief, such relationships do not confer the same legal rights as a legally married couple.

Legal Status of Common Law Marriage

Although people often refer to common law marriage in Scotland, actually it is not a legal status. There is no such thing as a common law marriage. There is no such thing as a common law husband or wife. If you have not entered into a formal marriage or civil partnership then you cannot access the rights and remedies which flow from these legal statuses. People in this situation may seek legal advice to understand their position.

Marriage by cohabitation with habit and repute

Sometimes, people refer to “common law marriage” when they are actually meaning “marriage by cohabitation with habit and repute”. That is where it can be shown that a couple that held themselves out as married (and other people think they are married) although no formal ceremony has taken place. If they can successfully do this, then they can access the same financial and other remedies open to married/civil partnered couples. However, our law changed in 2006 and “marriage by cohabitation with habit and repute” was abolished except in relation to couples who began cohabiting prior to 4 May 2006. So, as times passes, fewer and fewer will be able to argue successfully that they are married by cohabitation with habit and repute.

Cohabitation

Although common law marriage as legal status does not exist in Scotland, it is of course possible for couples to cohabit. Often when people refer to a common law marriage they are meaning a couple who have been cohabiting but who are not married/civil partnered. There are certain legal rights which may be open to cohabiting couples on separation and death. These arise in terms of the Family Law (Scotland) Act 2006, sections 25 to 29. They are not automatic and they do not place cohabitants on the same legal footing as spouses/civil partners. This can come as a shock to someone who believed they were a common law spouse.

What does cohabitation mean, in legal terms?

In order to be able to access the provisions of the 2006 Act in relation to cohabitants, you must first be able to show that you were cohabiting. Section 25 of the 2006 Act defines what is meant by “cohabitant” (often also referred to as “cohabitee” or, incorrectly, as common law husband, wife or spouse). It is defined in the legislation as a man and a woman who are (or were) living together as if they were husband and wife or two persons of the same sex who are (or were) living together as if they were civil partners.

The court will also look at the length of the period during which parties have been living together (or lived together), the nature of their relationship during that period and the nature and extent of any financial arrangements subsisting, or which subsisted, during that period.

Sometimes there will be a dispute about whether a couple were actually cohabiting, and the court has to be asked to determine this initial matter.

Consequences of a cohabiting relationship ending

Some couples will be able to agree direct, or with assistance from their lawyers what should happen in relation to financial, and where relevant childcare, matters in the event their relationship breaks down. They can sign up to a legal agreement (called a Minute of Agreement or Separation Agreement) detailing what has been agreed and in full and final settlement of the issues arising from their relationship.

However, where agreement cannot be reached, the court can be asked to determine matters. This is dealt with at section 28 of the 2006 Act.

Claims must be raised (in court) within one year of the end of the relationship (so, when they stop living together as a couple). The only exception to this if one of the cohabitants is in another country and the couple are attempting to mediate.

So, the one year time bar rule is vital to bear in mind.

Sometimes, there will be a dispute about the date of separation, and the court has to decide on that issue first. If the earlier date is preferred then this could mean any claim is time-barred.

The legislation refers to three possible outcomes. The court can:

• (a) make an order requiring the other cohabitant (the “defender”) to pay a capital sum of an amount specified in the order to the applicant;
• (b) make an order requiring the defender to pay such amount as may be specified in the order in respect of any financial obligations of caring, after the end of the cohabitation, for a child of whom the cohabitants are the parents;
• (c) make such interim order as it thinks fit.

It is only possible to ask for payment of a capital sum. So, it is not possible to ask for transfer of ownership of a property (eg if the cohabitants own a property jointly and one wants to buy the other out), nor for sale of a property (eg if the couple cannot agree on what should happen to a jointly owned property – in that situation though there may be another court remedy available known as an action for division and sale).

There are two possible heads of claim (you can apply for either or both).

The first head of claim is where one party asks for payment of a capital sum on the basis that he or she can demonstrate economic disadvantage. This involves the court in assessing whether and to what extent a cohabitee has derived economic advantage from contributions made by the applicant and whether and to what extent the applicant has suffered economic disadvantage in the interests of the other party and/or a child of the relationship. There are then offset provisions which need to be considered. The first is the extent of any economic advantage the defender has derived being offset by economic disadvantage suffered by the defender in the interests of the applicant or a child of the relationship. Secondly, the extent to which any economic disadvantage suffered by the applicant in the interests of the defender or a child is offset by any economic advantage the applicant has derived from contributions made by the defender.

Contributions include indirect and non-financial contributions. Economic advantage includes gains in capital, income and earning capacity but this is not an exhaustive list. Assessing whether a cohabitee has a claim, per case law, does not involve a detailed accounting exercise of who paid what over the course of the relationship. Case law suggests instead that the statutory provisions should be approached broadly and with a view to achieving the paramount objective of the legislation, being to make such award (if any) as the court considers appropriate in order fairly to compensate the applicant where in the course of the cohabitation either the other cohabitee has suffered a net economic advantage from contributions made by the applicant or the applicant has suffered a net economic disadvantage in the other’s interests. Case law over the years has shown that the court tends to have regard to where each of the parties were at the start of the cohabitation and where they were at the end.

The second head of claim is where a cohabitee has the financial obligations of caring for a child under the age of sixteen years. This focuses on ancillary costs associated with a child’s upbringing, over and above board and lodging which is a generalised way of looking at child support. It is possible to claim under this head even where the other party is paying child maintenance. Ancillary costs typically include paying afterschool care costs, activities associated with education such as school trips, equipment, uniforms and the like. There is no set definition of ancillary costs though, it depends on each family’s circumstances.

The legislation wording is quite complicated and has come under a lot of criticism. The Scottish Law Commission was tasked with reviewing it and providing recommendations for changes. The Commission provided a comprehensive report. Reform is anticipated but we do not have a start date for that as yet.

Occupancy Rights:
If cohabitants separate and the family home is owned in the sole name of only one of the cohabitants, then the other cohabitant does not have an automatic right to continue to occupy the property. It is possible to apply to court to ask for the grant of occupancy rights, for up to 6 months at a time.

Cohabitation Agreements

It is a really good idea to consider entering into a Cohabitation Agreement at the outset of cohabitation. Or, even if you have already started to cohabit, you can still have a Cohabitation Agreement put in place, provided of course both of you agree to that.

This might seem a very clinical approach to what is after all an exciting new chapter in your life. However, it means you can set out exactly what you want to happen in the (hopefully unlikely) event of a separation. So, if you have bought a property jointly and contributed unequally to the purchase price, the cohabitation agreement can set out you will get back what you put in. The agreement can set out clear arrangements for what should happen to a jointly owned property and other jointly owned items in the event of separation. If the property is owned in one cohabitant’s sole name, the agreement can detail provision for the other cohabitant to leave the property within a set period of time. You can specify the arrangements for payment of the mortgage and other household outlays. The cohabitation agreement can be tailored to your needs. You can plan for the future and ensure that the decision-making is within your control (and not left to a Sheriff or Judge, with the cost, uncertainty and stress associated with court action).

Claims on death of a cohabitant

This is dealt with at section 29 of the 2006 Act.

It is only available where the cohabitant has died without a will. Unlike with married/civil partnered couples there is no automatic entitlement for the surviving cohabitant to share in the deceased’s estate.

Claims must be made within six months of the deceased’s death. This is a very short timescale during a stressful and upsetting period but it is vital not to overlook it.

It is possible to ask for payment of a capital sum and/or a transfer of property order.

The court will consider various factor in deciding what, if any, order to make.

It will look at the size and nature of the deceased’s net intestate estate. It will factor in any benefit received, or to be received, by the survivor on, or in consequence of, the deceased’s death and from somewhere other than the deceased’s net intestate estate (for example a pension or life insurance payout). It will consider the nature and extent of any other rights against, or claims on, the deceased’s net intestate estate and finally any other matter the court considers appropriate. The legislation does not aim to place cohabitants on the same footing as married or civil partnered couples, recognising that cohabitants have made a choice not to enter into a more formal relationship status, such as a marriage or civil partnership.

So, as with claims under section 28, the court under section 29 has a wide discretion in terms of its decision making.

If the property is jointly owned then it is important to check if the house titles contain a provision known as a “survivorship destination”. It means that if one of the owners dies his or her share passes automatically to the other (and vice versa) as opposed to going into the deceased’s estate. This is a common feature in cohabitation agreements.

The take home message here is the importance of making a Will in order to be sure your loved ones are provided for in line with your wishes. Also consider appointing a Power of Attorney in case something were to happen to you and you could no longer makes decisions about your financial or welfare matters. If you have children you can also appoint a guardian to look after them in the event of something happening to you meaning you could no longer care for them.

Children of a cohabiting relationship

If you are cohabiting and have children then each of you will have parental responsibilities and rights (PRRs), provided both parents are named on the birth certificate. If the father is not named on the birth certificate then it is possible to apply to court for an order for PRRs. On separation, decisions will need to be made about the arrangements for the children. Sometimes, the court has to be asked to decide issues concerning children, where agreement cannot be reached. This could include orders for residence and contact including holiday contact, orders regulating what school or nursery a child should attend, and even what should happen where one parent wants to relocate abroad with a child.

Conclusion

The Scottish family law framework does not place cohabitants on the same legal footing as married or civil partnered couples. Common law marriage does not exist in terms of our legislation. The legal framework governing couples who are married or in civil partnerships is different to that governing cohabiting couples. Unfortunately, many are not aware of all of this. The myth of the common law marriage and common law spouse still exists. If you are contemplating cohabiting or you have been cohabiting and you separate or your partner dies without a Will then you should seek legal advice from a family lawyer as soon as possible.

Here at Harper Macleod we will find out what you want to achieve, talk you through the options and support you throughout the process.