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This information applies to Scotland
Legal status
This item is about the legal differences between civil partnership and cohabitation. This information is for same sex couples.
You can use this item to direct you to the key areas of law which are affected by cohabitation and civil partnership.
Many of the areas covered here are complex and you may also require specialist advice from, for example, a Citizens Advice Bureau. To search for details of your nearest CAB, including those that can give advice by email, click on  nearest CAB.
Cohabitation
Although there is no specific legal definition of cohabitation, it generally means living together as a couple without being in a civil partnership. In different areas of the law it means different things and gives different rights.
Cohabitation contracts
If you wish to formalise aspects of your status with a partner you can draw up a cohabitation contract which outlines the rights and obligations you have towards each other.
A cohabitation contract may be difficult to enforce legally, particularly while you are still together. However a contract may be useful to remind you of your original intentions, or if you split up.
Civil partnership
A civil partnership is a legally recognised relationship between two people of the same sex. A civil partnership only exists once it is registered. Once registered it confers many of the same rights and responsibilities as does a marriage.
Evidence of a civil partnership
You can prove that a civil partnership exists by a:-
- civil partnership certificate
- certified copy of an entry in the register of civil partnerships.
When does a civil partnership end
A civil partnership only ends on the death of one partner or a formal process called dissolution.
For further information on civil partnership, see Registering a civil partnership.
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Children
Parental responsibilities and rights
Cohabitation
If you are a mother, you have full parental responsibilities and rights over your child, unless these have been removed by a court.
If you are a father you do not have automatic parental responsibilities and rights towards your child unless from 4 May 2006 you jointly register the birth of your child with the child’s mother. You will share these rights equally with the child’s mother. Alternatively, you acquire parental responsibilities and rights by making a formal agreement, called a parental responsibilities agreement. If your child’s mother does not agree you can apply to court.
A same-sex partner has no automatic parental responsibilities and rights for their partner's children.
Civil partnership
A civil partner does not have automatic parental rights over their partner's child/ren but has a general duty to safeguard the health and welfare of children under 16 who live in the household.
Adoption
Cohabitation
Cohabiting couples can not adopt a child together. One partner must apply to adopt the child as a single person.
Civil partnership
Civil partners cannot adopt a child together. One civil partner must apply to adopt the child as a single person.
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Money
Benefits and tax credits
Cohabitation
A cohabiting couple is treated as any other couple who are living together, whether heterosexual, married or civil partners when assessing entitlement to means-tested benefits and tax credits.
Entitlement to some benefits depends on whether or not you have paid enough national insurance contributions. These benefits include:-
- incapapcity benefit
- contributory employment and support allowance
- maternity allowance
- contributuion-based jobseeker's allowance.
Depending on the benefit, you might get more money for a civil partner who is dependent on you and, in some cases, for dependent children.
Cohabiting partners cannot claim bereavement benefits or a retirement pension based on their partner's national insurance contribution.
Other benefits, for example, disability living allowance and attendance allowance are not affected by whether or not a person is cohabiting.
A cohabiting couple can claim child benefit for any children living with them.
Civil partnership
Civil partners are treated as any other couple who are living together, whether heterosexual, married or civil partners, when assessing entitlement to means-tested benefits and tax credits. Your resources and requirements are jointly assessed.
Entitlement to some benefits depends on whether or not you have paid enough national insurance contributions. These benefits include:-
- incapapcity benefit
- contributory employment and support allowance
- maternity allowance
- contributuion-based jobseeker's allowance.
Depending on the benefit, you might get more money for a civil partner who is dependent on you and, in some cases, for dependent children.
A surviving civil partner can claim bereavement benefits, or in some cases, a retirement pension based on a partner's national insurance contributions.
For more information about incapapcity benefit, employment and support allowance see Benefits for people who are sick or disabled.
Tax
Cohabitation
Each partner in a cohabitation is treated as a single person for tax purposes.
Civil partnership
Each partner in a civil partnership is treated separately for tax purposes.
Pensions
Cohabitation
The provision of occupational and personal pensions for dependants will depend on the rules of the scheme. Most schemes offer benefits to dependant children and some will offer benefits to a dependant partner. Benefits should be available to same-sex partners otherwise there may be unlawful discrimination.
Where a scheme is suitable for cohabiting partners you will need to complete an 'expression of wishes' form, which indicates who benefits are paid to on your death.
A personal pension can be arranged to give cover to whoever you want provided you are able to pay what may be large contributions to the pension fund.
You can not claim a state retirement pension based on your cohabiting partner's national insurance contributions.
If you split from your cohabiting partner you have no automatic right to your partner's pension. You may have no automatic right to a cohabiting partner's pension on death.
Civil partnership
It is against the law for an occupational pension scheme not to offer the same rights to a civil partner as a married partner.
It is unlawful for a private pension scheme which is contracted-out of state additional pension not to offer the same rights to married partners and civil partners, whenever the plan was taken out. The benefits accruing from the personal pension schemes which are not contracted-out of additional pension will depend on the individual contract.
You may be able to claim a state retirement pension based on your civil partner's national insurance contributions.
A civil partner is entitled to a share of an ex-partner's pension if the relationship is formally ended, for example by dissolution. If your civil partner dies, you may also be entitled to a share of an occupational or private pension.
Debts
Cohabitation
Neither partner is liable for the other’s debts unless one acted as a guarantor for the other or agreed to a joint liability. However, a cohabiting partner can be liable for debts relating to council tax or a social fund loan.
Civil partnership
Neither partner is liable for the other’s debts unless one acted as a guarantor for the other or agreed to a joint liability. However, a civil partner can be liable for debts relating to council tax or a social fund loan.
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Student grants and loans
Cohabitation
Your cohabiting partner's income is taken into account when deciding your eligibility for a student grant or loan from 1 August 2008.
Civil Partnership
If the first year of your course started before December 2005, your civil partner's income will not be taken into account for the duration of your course in deciding your eligibility for a student grant.
If you started a course after August 2006, your civil partner's income will be taken into account when deciding your eligibility for a student grant or loan.
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Relationship
Choice of name
Cohabitation
You may use any name, including your partner's provided no fraud is intended.
Civil partnership
You may use any name, including your civil partner's, provided no fraud is intended.
Maintenance
Cohabitation
Cohabiting partners do not automatically have a duty to maintain each other financially when the relationship ends, unless they have an agreement to do so. However, one partner can apply to court (within 1 year of the relationship ending) for a limited financial settlement from their former cohabiting partner. As a result, a court may decide that one party should pay the other a capital sum or make a payment in recognition of the costs of caring for any child of the relationship under the age of 16. The court will consider whether, as a result of decisions the couple made during their relationship, one partner has been financially disadvantaged. For example, if a couple had decided that one partner would give up a career to look after their children, the court will look at the effect that decision had on the partner’s ability to earn money after the relationship ended.
Civil partnership
Civil partners have an equal duty to maintain each other.
Next of kin
Cohabitation
Next of kin is usually defined as the nearest relative by blood or marriage. You can argue that your cohabiting partner should be accepted as next of kin but some organisations may not accept this.
Civil partnership
A civil partner is always acceptable as next of kin.
Sexual relationship
Cohabitation
There is no legal assumption that two people who live together should have a sexual relationship.
Neither a man or a woman in a same sex relationship can be charged with raping a partner as the law defines rape quite specifically as the rape of a woman by a man. However, a man or a woman in a same sex partnership can be charged with a serious sexual assault of a partner.
Civil partnership
The absence of a sexual relationship in a civil partnership may provide grounds for irretrievable breakdown of the civil partnership. However any excessive or unreasonable demands from one partner could provide grounds for dissolution of the civil partnership on the basis of unreasonable behaviour.
Neither a man nor a woman in a same-sex relationship can be charged with the rape of the same-sex partner as the law defines rape quite specifically as the rape of a woman by a man. However a man or a woman in a civil partnership can be charged with serious sexual assault of a partner.
Domestic violence
Cohabitation
You can go to court to apply for a number of different orders to legally protect yourself if your partner is violent.
Civil partnership
You can go to court to apply for a number of different orders to legally protect yourself if your civil partner is violent.
Ending a relationship
Cohabitation
A cohabiting couple can separate informally without any need for intervention of the court.
Marriage and civil partnership
A couple can separate informally but will need to go to court to dissolve the civil partnership.
Property and gifts
Cohabitation
If a cohabiting couple split up and they disagree about who owns property, any household goods (except money, securities, vehicles or pets) which were bought or acquired during the cohabitation are presumed to be owned equally. Goods acquired before the cohabitation belong to the person who acquired them. Gifts or inherited goods belong to the person who receives them.
Civil partnership
If a couple split up and they disagree about who owns property, any goods and property acquired during the civil partnership are presumed to be owned jointly. Gifts and inherited goods belong to the person who received them. Goods acquired before the civil partnership belong to the person who acquired them.
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Housing
Tenants
Cohabitation
A partner who is not a tenant will have no rights to remain in the home if the tenant withdraws permission for them to stay. The non-tenant can apply to the court for the right to remain in the home. However, if both partners moved in together it may be possible to prove that there is a joint tenancy. If the sole tenant leaves the property the other partner has no rights to stay unless they have been granted occupancy rights by the court prior to the tenant leaving.
Civil partnership
Both civil partners have a right to remain in the home, regardless of whose name is on the tenancy agreement, unless a court has ordered otherwise.
Owner occupiers
Cohabitation
A partner who is not a joint owner will have no right to remain in the home if the owner withdraws permission for them to stay. They can apply to the court for the right to remain in the home.
A cohabiting partner who is not the owner cannot stop the sale of the house but may apply for limited right to remain in the home. They are not entitled to a share of the proceeds unless they are a joint owner or can show a financial contribution.
Civil partnership
Both civil partners have a right to remain in the home unless a court has ordered otherwise.
If the home is sold a civil partner will usually have the right to continue to live in it unless they have agreed to the sale. They are not entitled to a share of the proceeds unless they are a joint owner. They may be able to claim a share in a settlement on the dissolution of a civil partnership.
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Death of partner
Inheritance from partner
Cohabitation
If your cohabiting partner dies without leaving a will, their estate will be distributed according to the rules of intestacy. You will not automatically inherit unless, as a couple, you owned property jointly. You can apply to court (within 6 months of your partner dying) for a share of your deceased partner’s estate. However, if you are in a cohabiting relationship you both need to make wills if you wish to ensure that you can inherit from each other.
Civil partnership
If your civil partner dies without leaving a will, you will get the home, contents, and part of the remaining estate.
If your civil partner does leave a will which leaves little or nothing to you, you can claim legal rights to part of the estate.
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Legal Aid
Cohabitation
Your cohabiting partner’s income and capital is taken into account when assessing your eligibility for legal aid, unless you are taking legal action against each other.
Civil partnership
Your civil partner’s income and capital is taken into account when assessing your eligibility for legal aid, unless you are taking legal action against each other.
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Witnesses
Cohabitation
Your cohabiting partner can be called as a witness for or against you in both civil and criminal proceedings and can be compelled to appear and give evidence.
Civil partnership
In civil cases your civil partner can be a witness for or against you and can be compelled to give evidence. In criminal cases your civil partner can be called as a witness in your defence. Your civil partner can be called as a witness for the prosecution but can only be compelled to give evidence if they are a victim of the crime or in certain other cases such as child sexual abuse.
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