Common law husband and wife – what are your rights in law?

Mother, father and upset child

There is no such thing in today’s society as a traditional marriage. Yet many people are still unaware that “common law marriage” or a “marriage by cohabitation and repute” is a concept that has been abolished in Scotland now for many years.

As of 2006 the rule of law by which marriage could be constituted by cohabitation with habit and repute ceased to have effect. Notwithstanding this, we continue to receive enquiries from clients who erroneously believe that they are or have been part of a “common law marriage”. It can therefore be quite a shock for those people to discover that they do not have rights arising from their separation akin to those of a married couple.

However, do not despair, all is not lost! The Family Law (Scotland) Act 2006 introduced, among other things, legal safeguards for cohabiting couples and their children. It makes provision for an application for a limited financial settlement to be made to the court by a ‘cohabitant’ in the event of the breakdown of a relationship where the couple lived together but were not married. An application can be made to the court for payment of a capital sum and/or for payment to be made in respect of the costs of caring for any child of the cohabiting couple who is under the age of 16.

In the event that such an application is made to the court, consideration is given to whether or not any “economic advantage” has been derived by the opponent from contributions made by the person applying for financial support, and, whether the person making the application has suffered economic disadvantage. The court has to essentially carry out a balancing exercise when considering such applications.

An absolutely critical point, however, is that any application that is to be made under the 2006 Act for financial provision must be made within one year of the date on which the cohabitation ended. All too often clients seek advice about their rights to financial provision after the expiry of the one-year time limit. In many ways this is understandable – perhaps they have been dealing with the emotional fallout from their separation. Or perhaps they have been engaged in finding alternative accommodation, or, perhaps they have simply not felt that there is any necessity to address the financial issues that need to be addressed with any haste.

Often they are oblivious that there is any time limit that needs to be considered. In some cases when the one-year time limit has passed, the saving grace can be that title to the house or flat owned by the couple is held in joint names and, at the very least they have rights in and to heritable property irrespective of any expired claim they may have been entitled to make under the 2006 Act. In other cases, by the time advice is sought and the time limit of one year has expired, title to the house may be held in the opponent’s sole name and the options available to the client in those circumstances may be severely restricted.

We strongly recommend that legal advice is sought as soon as possible following separation. Our dedicated family law team can help you navigate your way through what can be a challenging time following your separation. If you, or someone you know, needs advice about separation and the options available to you, whether you are married, cohabiting or in a civil partnership, please get in touch with us for a confidential, compassionate discussion.

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