Separation in Scotland (Cohabitants / Unmarried)

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Legal review: Brian Rooney, Managing Partner and Law Society of Scotland Accredited Specialist in Family Law. Last reviewed: 20th July 2026.

Separation for Unmarried Couples in Scotland: Where You Stand

You lived together. You have now separated. The first questions are almost always the same: can I be made to leave the house? Is any of it mine? Can I claim anything from my former partner? The answers for unmarried couples in Scotland are very different from those for married couples or civil partners — and there is one deadline that matters more than any other.

This guide explains separation for unmarried couples in Scotland in plain terms: your position on the home, what you can and cannot claim financially, how children are dealt with, and what happens if a partner dies. It explains the law as it stands now, while reform is under active consideration.

Common law marriage: the myth that costs people most

The single most damaging misunderstanding we encounter is the belief that living together for a certain number of years creates a marriage in all but name, with the rights that go with it. It does not. Scotland abolished marriage by cohabitation with habit and repute in 2006. No matter how long you lived together, shared a home, raised children, or pooled your money, you do not acquire the rights of a married spouse simply by virtue of having cohabited.

Why this matters in practice: a person who assumes they are protected like a spouse may take no steps to protect themselves during the relationship, and then discover on separation that their position is far weaker than they believed. Understanding that early changes the decisions you make.

The law that applies: the 2006 Act

Section 28 is a distinct Scottish statutory remedy. The law governing unmarried couples in England and Wales is materially different.

When an unmarried couple separates in Scotland, the relevant law is found in the Family Law (Scotland) Act 2006. It does not treat cohabitants as if they were married. Instead it provides a narrow, discretionary remedy designed to address certain financial imbalances that arose because of the relationship.

To use it, you must first meet the definition of a cohabitant. Broadly, that means a couple who were living together as though they were spouses or civil partners. There is no fixed minimum period; the court looks at how long you lived together, the nature of the relationship, and the financial arrangements between you.

Cohabitants and married couples: what is actually different

The clearest way to understand your position is to see it against what a married couple would get. The differences are stark, and they are the reason early advice matters.

How a section 28 claim differs from financial provision on divorce

A claim under section 28 is not the same as financial provision on divorce. The statutory matrimonial-property regime does not apply, there is no equivalent statutory relevant-date regime, and there is no principle of equal sharing.

The court instead considers whether, and to what extent, one former cohabitant derived economic advantage from contributions made by the other, and whether the applicant suffered economic disadvantage in the interests of the other cohabitant or of a relevant child.

The home: whose is it, and can I be made to leave?

This is usually the most pressing worry, so it is worth being direct. If the home is owned (or rented) in your former partner’s sole name, the starting point is that it is theirs, and you have no automatic right to remain. Length of relationship does not change that.

That is the starting point, not always the end of it. Two routes can matter. First, if you contributed financially — to the deposit, the mortgage, or significant improvements — that contribution may support a capital claim under Section 28, even though it does not give you ownership. Second, the court can be asked to grant occupancy rights to a non-owning cohabitant, though these are limited and time-bound rather than the open-ended protection a spouse enjoys.

If the home is in joint names, the title is the starting point for your respective shares, but an unequal-contribution argument can be made where one of you put in significantly more.

The money: what can I actually claim?

The orders the court can make

Under section 28 as it currently stands, the court may:

• order payment of a capital sum;
• order payment of a specified amount in respect of the economic burden of caring, after cohabitation ends, for a child under 16 of whom the former cohabitants are parents; or
• make such interim order as it considers appropriate.

Section 28 does not currently allow the court to order the transfer of property or periodical payments. Those remedies have been proposed as part of potential reform but are not current law.

The financial remedy for separating cohabitants is a claim under Section 28 of the 2006 Act. It is important to understand what it is — and what it is not. It is a claim for a capital payment (a sum of money). It is not a share of your former partner’s assets, and the court cannot order a transfer of property, ongoing maintenance, or a pension share.

The claim turns on economic balance. In broad terms, the court asks whether your former partner gained an economic advantage from contributions you made, or whether you suffered an economic disadvantage in the interests of your partner or of a child of the relationship. The court then weighs advantages against disadvantages. The focus is on fairness in the economic consequences of the relationship — not on dividing what each of you owns as though you had been married.

Because the court has wide discretion and there is limited guidance on how awards are calculated, these claims can be genuinely difficult to predict. That is precisely why early, specific advice is valuable: the facts that matter — who paid for what, who gave up what — need to be identified and evidenced from the outset.

Evidence you should preserve

Keep evidence of:

• when you began living together as a couple and when you separated;
• contributions to the deposit, purchase price, mortgage or improvement of property;
• transfers of money between you;
• responsibility for household expenditure;
• work undertaken in a partner’s business;
• non-financial contributions;
• childcare responsibilities; and
• any period during which either person reduced or gave up employment, earnings or career opportunities.

The relevance and weight of any particular evidence depend on the circumstances and on the statutory test.

The one-year deadline: the thing most people miss

An application under section 28 must be made to the court no later than one year after the date on which the parties ceased to cohabit. There is currently no general discretion allowing the court to accept a late claim. The strict deadline, court procedure and evidential requirements make early specialist advice particularly important.

Arrange a free initial telephone call of approximately 10–15 minutes.

This is the most important practical point on this page. A separation claim under Section 28 must be made within one year of the date the couple cease to cohabit. The deadline is strict. If it passes, the right to claim is generally lost — regardless of how long you lived together or how strong your claim would have been.

In practice this means you should take advice quickly after separating, not after months of informal negotiation. Where agreement is close but the year is running out, it may be necessary to raise a court action protectively to preserve the claim, even while negotiations continue. Leaving it late removes options.

Children: largely the same, married or not

One area where your marital status makes little difference is children. Parental responsibilities and rights, and any dispute about where a child lives or how much time they spend with each parent, are decided under the law relating to children, with the child’s welfare as the court’s paramount concern. Whether the parents were married is not the determining factor.

Child maintenance is generally handled by the Child Maintenance Service rather than the court, and is calculated on the paying parent’s income. This applies in the same way to unmarried parents.

If a partner dies: a separate, shorter deadline

The position on death is different again, and it catches people out. If your cohabiting partner dies without leaving a valid will, you may be able to make a claim against their estate under Section 29 of the 2006 Act. But there is no automatic entitlement of the kind a spouse has, and the deadline is short.

As the law currently stands, a claim on a partner’s death must be made within six months of the date of death. The Scottish Parliament has legislated to extend that period to twelve months, in section 78 of the Trusts and Succession (Scotland) Act 2024, but the change is not yet in force — until it is, the six-month deadline applies. The court has discretion over what, if anything, is awarded, and a cohabitant cannot receive more than a spouse would have. If your partner left a valid will, this claim is not available — which is one reason making a will matters so much for unmarried couples.

Proposed Reform of Cohabitants’ Financial Rights

Cohabitation law in Scotland is under active review. The Scottish Law Commission recommended reform of this area, and the Scottish Government consulted on implementing those recommendations; that consultation closed in April 2026, with responses now being considered. While nothing has yet changed, the proposals give a sense of the likely direction.

In outline, the proposals would modernise the definition of a cohabitant (moving away from the “as if husband and wife” wording towards a couple in an enduring family relationship), introduce more flexibility around the strict time limit, and give the court a broader range of remedies than the remedies currently available. They would not, however, extend pension sharing to cohabitants, as that would require legislation at Westminster. None of this is law yet. If you are separating now, the current rules — including the one-year deadline — still apply, and you should act on that basis.

Recording what you agree

Most cohabitation separations are resolved by agreement rather than litigation. Where you reach a settlement, it should be put into a properly drafted, registrable document so that it is binding and enforceable. That document — and how registration works — is dealt with in our dedicated Minute of Agreement / Separation Agreement guide.

Common questions

Does living together for years give me the same rights as marriage?

No. There is no common law marriage in Scotland. However long you lived together, you do not acquire a spouse’s rights by cohabiting.

My partner owns the house — do I have any right to stay?

There is no automatic right to remain in a home owned solely by your former partner. You can ask the court to grant occupancy rights, but these are limited and time-bound. A financial contribution you made may support a separate capital claim.

What can I actually claim when we split up?

A capital payment under Section 28 of the 2006 Act, if its tests are met. It is based on economic advantage and disadvantage arising from the relationship — not a share of your partner’s assets, and not maintenance or a pension share.

Is there a deadline?

Yes, and it is strict: one year from the date you cease to cohabit. Take advice quickly; the claim can be lost if the year passes.

Can I claim maintenance from my former partner?

No. Unlike spouses, cohabitants cannot claim aliment from each other on separation.

What happens to the children?

Arrangements for children are decided on the basis of the child’s welfare, regardless of whether the parents were married. Child maintenance is generally dealt with by the Child Maintenance Service.

My partner died without a will — can I claim?

You may be able to claim against the estate under Section 29, but only where there is no valid will, and within a short deadline (currently six months from death). The court has discretion, and you cannot receive more than a spouse would.

Related guides

• Cohabitation: rights, agreements and protecting your position
• Minute of Agreement / Separation Agreement
• Separation in Scotland (Married Couples)
• Children: contact, residence and parental responsibilities