There is a widespread assumption that couples who live together for a long time acquire the same legal rights as married couples. In Scotland, that assumption is wrong. There is no such thing as 'common law marriage' under Scots Law, and the protections available to cohabiting couples on separation are considerably more limited than those that apply on divorce. Crucially, those protections come with a strict time limit that many people do not realise exists until it is too late.

If you are a cohabiting couple in Scotland and your relationship has come to an end, understanding your legal position and acting promptly is essential. Here is what you need to know.

What the Law Says

Cohabiting couples in Scotland are governed by the Family Law (Scotland) Act 2006. Section 28 of that Act provides a framework that allows one party to apply to court for financial provision when cohabitation ends. It is the main legal route available to couples who have not married or entered a civil partnership.

Before the 2006 Act came into force, there was no proper framework for separating cohabiting couples to resolve financial matters through the courts. The Act changed that, but the rights it created are not automatic and they are not unlimited. To benefit from them, you have to act within the time the law allows.

The One-Year Rule

This is the point that catches many people out.

If you and your former partner cannot agree on financial provision, any court application must be made within one year of the date on which your cohabitation came to an end. That deadline is fixed. If you miss it, you lose the right to apply to court entirely, regardless of the circumstances or how strong your claim might have been.

There is one limited exception. If the parties have attempted mediation and it has broken down, and more than a year has already passed since separation, the application must be made within eight weeks of the mediation ending. This is a narrow exception, and it does not give either party an open-ended period to delay.

The message is straightforward: if you think you may have a financial claim, seek legal advice as soon as possible after separating. Do not wait.

What Financial Claims Can Be Made?

Under Section 28, the court can order one cohabitant to pay a capital sum to the other. When deciding whether to make such an order, and to what amount, the court will consider:

• Whether one party gained an economic advantage as a result of the contributions made by the other
• Whether one party suffered an economic disadvantage in the interests of the other, or in the interests of any children of the relationship
• The extent to which any economic advantage or disadvantage has already been accounted for

Contributions are broadly defined and can include financial contributions, contributions in kind, and the care of children. There are no set rules about percentages or outcomes. The court has discretion to decide what is fair in the particular circumstances, and the outcome will depend very much on the specific facts of the case.

Claims relating to the death of a cohabitant are also possible under Section 29 of the Act, where the deceased had no Will or where the survivor is not adequately provided for. There is currently a six-month time limit within which claims of this nature must be raised. This is to be extended to one year under Section 78 of the Trusts and Succession (Scotland) Act 2024 through secondary legislation, expected at some point in 2026.

Property and Financial Claims

Property ownership for cohabiting couples follows the general rules of property law. In broad terms, property belongs to the person who owns it. If you own your home jointly, you each own a share. If the title is in one person's name alone, the other has no automatic claim to it simply by virtue of having lived there.

This can produce results that feel deeply unfair. A partner who has contributed financially to a home they do not legally own, or who has given up employment to raise children and support the household, may find themselves in a very difficult position on separation. The Section 28 framework exists to address these situations, but it requires an active claim, within the time allowed, and the outcome is never guaranteed.

Where couples own property together and cannot agree on what should happen to it on separation, there are further legal steps that can be taken, including applying to the court for division and sale of the property. Again, early legal advice is the key to understanding your options.

Why Cohabitation Agreements Are Increasingly Common

A cohabitation agreement is a formal written contract entered into by a couple who live together, or intend to live together, but who are not married or in a civil partnership. Under Scots Law, such agreements are treated as binding contracts, provided they are properly drafted and entered into freely by both parties.

A cohabitation agreement can set out:

• Who owns what, and in what proportions
• How shared financial contributions to a property or household are recorded
• How assets and liabilities will be dealt with if the relationship ends
• What happens to specific items of property

Cohabitation agreements are not just for couples with significant assets. They are increasingly used by couples of all circumstances who simply want clarity and fairness built in from the outset, rather than relying on a legal framework that may not reflect what they actually intend.

There has been a marked increase in couples seeking cohabitation agreements in recent years, partly driven by greater awareness of the legal gaps that affect cohabiting couples, and partly by a desire to approach shared life with the same care and intention that couples bring to other significant decisions. Putting an agreement in place does not signal a lack of trust. It signals exactly the opposite: a shared commitment to treating each other fairly.

How Solicitors Create Clarity and Fairness

Whether you are separating from a long-term partner, thinking about moving in with someone, or simply want to understand your legal position, a solicitor experienced in family law can make a significant difference.

In the context of separation, a solicitor can advise you on whether you have a potential claim, help you assess its likely value, and either negotiate a settlement on your behalf or raise court proceedings within the required time limit. Acting early gives you the best chance of a fair outcome.

In the context of a new or existing relationship, a solicitor can draft a cohabitation agreement that is properly tailored to your circumstances and has the best possible chance of holding up if it is ever needed. Both parties should receive independent legal advice before signing.

How Paris Steele Can Help

At Paris Steele, our Family Law team understands that the end of any relationship, whether married or not, is both a legal matter and a deeply personal one. We provide clear, practical advice on financial claims on separation and can help you understand your position under the 2006 Act, including whether the time limit is a concern for you.

We can also help couples who are planning ahead to put a cohabitation agreement in place, giving both parties confidence about their respective rights and responsibilities from the start.

If you would like to speak to someone about your personal situation, a member of our Family Law team will be available every Wednesday fortnight, from 2pm until 4pm for a free, confidential, telephone call.

📞To book an appointment, call 01368 862746
📨Or email dunbar@parissteele.com