A comparison of cohabitation rights in England and Wales with Scotland

Contrary to what people might think, England and Wales have a different legal system and jurisdiction to Scotland, meaning there is not a common legal system in the UK.

Whilst there might be an overlap between them, the UK has three separate legal systems: England and Wales, Scotland and Northern Ireland.

There are many laws that are different between England and Wales and Scotland. In this blog, we’ll take a look at cohabitation rights in these two legal jurisdictions.

What happens on separation?

In both jurisdictions, people that live together but aren’t married, have no right to claim maintenance for themselves from their partner if they separate. However, parents do have an ongoing obligation to financially support their children.

In England & Wales there is no mechanism for the court to make an award of capital to a cohabitant on the breakdown of the relationship, except for the benefit of a child (under S1 Children Act 1989).  This means that one party could find themselves without a home or the resources to rent or buy one unless they can prove, through property law, that the only legal owner of the former family home retains it on trust for their mutual benefit.

However, in Scotland, the Family Law (Scotland) Act 2006 (“FLSA 2006”) does give some further rights to cohabitants (at this time, it is necessary to point out that the Scottish Law Commission are currently reviewing these laws so things could change in the future). The FLSA 2006 defines cohabitants as couples living together “as husband and wife” or “as civil partners” but does not include a minimum period of cohabitation.

Section 28 of the FLSA 2006 allows cohabitants to apply for an award of capital from their ex-partner where they can prove they have suffered an “economic disadvantage”, or their ex has derived an “economic advantage” from contributions made by them or in the interests of the other partner or a child. In other words, where one partner has suspended their career to care for the couple’s children, their earning capacity may be reduced as a result – an irrelevance in England and Wales. The court will carry out a balancing exercise and only if one party’s disadvantage is outweighed by the other’s advantage will an award be made. Applications must be made within one year of the relationship breakdown.

Section 26 of the FLSA 2006 also deals with the sharing of some household goods (although money, securities, cars and pets are excluded) bought during the period of cohabitation. There is no similar provision in England and Wales and it is often a contentious issue. In the absence of any agreement or contrary evidence, the law presumes that the parties jointly own the goods and must share them or their value equally.

And on death?

In England and Wales any property held jointly as “joint tenants” passes automatically on death to the other co-owner, outside the deceased’s will. If a party wishes to leave their share in joint property by will to someone else, it must be held as “tenants in common”.

The same applies in Scotland, with the exception that a survivorship clause is required for jointly owned property to pass by survivorship. Without one, it is assumed that the property is held in specific shares which can pass by will.

Cohabitants in both Scotland and England and Wales have no automatic rights of succession if their partner dies without having made a will. However, in both jurisdictions, legislation allows applications for financial provision against the deceased’s estate.

In England and Wales, such applications are for reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975, provided the applicant was being maintained by the deceased at that time. The time limit is six months from the date of grant of letters of administration, although this can be extended by the court in exceptional circumstances.

In Scotland, this is another issue dealt with by the FLSA 2006. Section 29 enables cohabitants to apply for a capital payment or transfer of particular property from the deceased’s estate provided the application is made within six months of the date of death (not extendable).

Protective steps

Despite the extra provision in Scotland, couples choosing to move in together are well-advised to take the same precautions to protect their position as their peers in England and Wales:

• Enter into a cohabitation agreement. This is a contract and in most cases, it should be enforceable.
• Make a will.

The future in England and Wales

It is fair to say that there has been long-standing resistance from successive governments to really tackle the badly needed reform needed in England and Wales. The Law Commission recommendations made way back in 2007 show little sign of being implemented. The Cohabitation Rights Bill made slow progress through the House of Lords and never got beyond its second reading in 2019.

In August 2022, the Women and Equalities Committee published their report which contained several recommendations for reform, with the aim to better protect cohabiting couples and their children financially upon separation, whilst still recognising the social and religious status of marriage. There has also been progress made in respect of extending cohabitees’ rights for bereavement support payments and widowed parent’s allowance, which enable bereaved cohabitees with dependent children to access additional financial support.

However, with the Government confirming in November 2022 that it would not be reforming cohabitation law  until changes to both marriage and divorce laws had been dealt with, the need for cohabitees to take legal advice remains as vital as ever.

Our family law team has a wealth of experience dealing with issues surrounding cohabitation. From wealth protection and cohabitation agreements to sorting out financial disagreements to putting in place arrangements for your children, our family lawyers can help you.