Moving in together? – Put it in Writing 21st, August , 2020

‘Cohabitation’ is a very formal sounding word. It is used a lot by Family Lawyers. It describes the situation where a couple, of any gender, decide to move in together but not get married.

It actually goes a bit further than that as the couple have to be living together as if they were husband and wife. So it does not include a sister and brother who decide to stay with each other.

The reason Family Lawyers use the term ‘cohabitation’ frequently is that it is becoming far, far more common for couples to cohabit rather than marry and there are different legal rules which relate to cohabitation as compared to marriage.

Unfortunately the rules (contained in the Family Law (Scotland) Act 2006) are complicated and create many grey areas.

Grey areas are good for lawyers but not for clients as they invariably involve more expense.

Often people don’t realise that there are laws which apply if you move in with your partner. The whole idea of not getting married (for some) is to keep things informal. Often, specifically, one or both people don’t want to make a financial commitment; the type of commitment they would have to make if they got married.

But they are making a serious mistake. There are legal and financial implications that stem from cohabitation. They are not the same as the implications arising out of marriage but they can be unexpected and significant.

None of this tends to matter unless the couple decide to separate; to stop cohabiting. One person might feel disadvantaged financially. They take legal advice. They are told that the law is not clear although they may well have a claim. But there are time limits and they will need to move quickly.

Before you know it a court action has been raised. ( court actions are never cheap)

There are two points to make about this. One is of general interest the other is practical.

Because of the general confusion that the laws on cohabitation have caused the Scottish Law Commission is looking to reform the law. If it had not been for Covid that may have happened already. No one knows what the new laws will be or how long they will be in the making.

At the moment the existing law applies. If you decide to move in with someone and to cohabit with them to avoid any uncertainty you should enter into a written agreement at the beginning setting out what you want to happen if the relationship ends.

You may wish to opt out of the law or you may wish to opt in with specific conditions.

The point is that if you enter a Cohabitation Agreement before you move in then there will be no issues if you decide to split.

Better having a fence at the edge of the cliff than an ambulance waiting at the bottom.

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