Many people in Scotland believe that if you live with your partner for long enough, you become “common law married” — with the same rights as a married couple if you separate, or if one of you dies. It is probably the most persistent myth in Scottish family law. It is also one of the most damaging, because people build their lives around protection that does not exist: they buy homes, give up careers, and raise children on the strength of it.
This guide explains where the myth comes from, what the law actually gives cohabiting couples in Scotland, what it does not give them, and the practical steps that close the gap.
Common law marriage abolished
Deadline for separation claims
Deadline for claims on death
Automatic share of your partner’s property
Where the Myth Comes From
The myth has a genuine historical root, which is why it survives. For centuries Scots law recognised forms of “irregular marriage”, and the last of them — marriage by cohabitation with habit and repute — allowed a couple who lived together and were generally reputed to be married to be treated as married in law. It was rarely invoked in modern times, but it existed, and it kept the phrase “common law marriage” alive in everyday speech long after it had any practical meaning.
Section 3 of the Family Law (Scotland) Act 2006 abolished marriage by cohabitation with habit and repute for the future, subject to limited transitional provision for cohabitation which ended before the Act came into force on 4th May 2006, and a narrow exception concerning certain invalid foreign marriages. If you and your partner moved in together after that date, no length of cohabitation — five years, fifteen years, fifty years — makes you married. There is no anniversary at which rights switch on. A couple who have cohabited for thirty years and a couple who moved in together last month stand in exactly the same legal position.
What the Law Actually Gives Cohabitants
When Parliament abolished irregular marriage, it put something in its place — but something deliberately and significantly narrower than marriage. Sections 25 to 29 of the Family Law (Scotland) Act 2006 give cohabitants a limited statutory framework.
Who counts as a cohabitant. Section 25 defines a cohabitant as either member of a couple who are, or were, living together as if they were spouses or civil partners. The court looks at the length of the relationship, its nature, and any financial arrangements between the couple. There is no minimum qualifying period.
Household goods. Section 26 creates a presumption that household goods acquired during the relationship are owned in equal shares. It does not cover money, securities, vehicles or pets.
Money and property from a housekeeping allowance. Section 27 provides that money derived from an allowance made by one partner for joint household expenses — and property acquired from it — is treated as belonging to each partner in equal shares. Crucially, it expressly does not apply to the home itself.
The one-year deadline. A section 28 claim must be made within one year of the date the couple ceased to cohabit. The deadline is absolute — the court has no discretion to extend it. People grieving the end of a long relationship rarely see a solicitor within the year, and by the time they do, the claim has often died. If you have separated from a cohabiting partner, the clock is already running: take advice immediately.
Claims on death — section 29. Where a cohabitant dies without a valid will, the survivor may apply to the court for provision from the estate. There is no automatic entitlement, and where there is a will which leaves the survivor nothing, section 29 gives no claim at all. The application must currently be made within six months of the death. Parliament has legislated to extend this to twelve months — section 78 of the Trusts and Succession (Scotland) Act 2024 — but that provision has not yet been brought into force, so the six-month limit still applies today. Any award is capped at what the survivor would have received had the couple been married.
Three Situations We See Every Week
The deposit. One partner puts £40,000 into the deposit on a home taken in joint names in equal shares. The relationship ends three years later. Without an agreement, the starting point is an equal split of the sale proceeds — the £40,000 is at risk. A cohabitation agreement of a few pages would have ring-fenced it.
The career sacrifice. One partner gives up work for nine years to raise the children while the other’s career and pension flourish. On divorce, a spouse would share the pension and the accumulated wealth. A cohabitant must instead pursue a discretionary capital sum under section 28 — and must do so within one year of separation.
The sudden death. A couple cohabit for twenty years in a house held in his sole name. He dies suddenly without a will. His estate passes under the intestacy rules to his children from a previous marriage. His partner’s only route is a section 29 application, at the court’s discretion, within six months.
How to Protect Yourself
None of this means cohabitation is legally reckless — it means the protection has to be built rather than assumed, and building it is neither difficult nor expensive.
A cohabitation agreement is a binding contract setting out what happens to the home, deposits, contributions and possessions if you separate. Properly drafted, it provides the certainty the 2006 Act does not, and it is at its most valuable when done early, while the relationship is healthy. A will is essential for every cohabitant, because the intestacy rules make no automatic provision for you, and the section 29 safety net is discretionary, capped and — for now — six months short. And where you are buying a home together, take advice on how the title is taken before you conclude missives, not after.
Our guide to cohabitation rights in Scotland covers the wider framework, and our team advises on separation for cohabiting couples across Scotland.
The Law Is Changing — Slowly
The Scottish Law Commission recommended substantial reform in its Report on Cohabitation of 2nd November 2022, including a modernised definition of cohabitant, wider remedies on separation, and flexibility on the one-year time limit. The Scottish Government consulted on implementing the scheme in a consultation which closed on 21st April 2026, and its response is awaited. Until any new Act is passed, everything on this page remains the law. Our guide to cohabitation law reform in Scotland tracks the detail as it develops.
Frequently Asked Questions
Is there such a thing as common law marriage in Scotland?
No. Marriage by cohabitation with habit and repute was abolished by section 3 of the Family Law (Scotland) Act 2006. Living together does not create a marriage, however long the relationship lasts.
How long do you have to live together to get rights in Scotland?
There is no qualifying period. Cohabitants have limited statutory rights from the outset under the Family Law (Scotland) Act 2006, and no length of cohabitation converts those rights into the rights of a married couple.
What can I claim if I separate from my partner?
A former cohabitant may apply under section 28 of the 2006 Act for a capital payment based on economic advantage and disadvantage arising from the relationship. The claim must be made within one year of separation.
Can I claim a share of my partner’s pension?
No. Pension sharing orders are available on divorce or dissolution of a civil partnership, not on the breakdown of cohabitation.
What happens if my partner dies without a will?
You may apply to the court under section 29 of the 2006 Act within six months of death. There is no automatic entitlement, and a valid will leaving you nothing defeats any claim.
Is the six-month deadline changing?
Legislation extending it to twelve months has been passed (section 78 of the Trusts and Succession (Scotland) Act 2024) but is not yet in force. The six-month limit applies today.
Does a cohabitation agreement actually hold up?
Yes. A properly drafted cohabitation agreement is a binding contract under Scots law, and it is the single most effective protection available to a cohabiting couple.
Living together and want your position protected?
Accredited family law specialists advising cohabitants across Scotland — agreements, separation claims and protective planning. Free 15-minute initial consultation and clear fixed fees.
