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This information applies to Scotland
Legal status
This item is about the legal differences between marriage and cohabitation. This information is for opposite sex couples.
You can use this item to direct you to the key areas of law which are affected by cohabitation and marriage.
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 married. In different areas of the law, it means different things and gives different rights.
Irregular marriages
The term 'common-law' husband or wife is often used but has no legal standing. It is a common misunderstanding that a couple will have established a 'common-law marriage' after living together for a period of time. This is not the case. Common-law marriage does not exist in Scotland. There was a type of irregular marriage called 'marriage by cohabitation with habit and repute' which could apply to couples who have lived together and were thought to be married. This was rarely used in practice and except for very particular circumstances was abolished by the Family Law (Scotland) Act 2006. Only irregular marriages established before 4 May 2006 will be recognised.
If you want to prove that your relationship (which began before 4 May 2006) is a 'marriage by cohabitation with habit and repute' you will need to consult a solicitor for advice on how to do this.
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.
Marriage
For a marriage that takes place in Scotland to be recognised as valid, it must meet certain conditions, for example, that there was a ceremony, that both partners were of an age to marry.
Evidence of marriage
You can prove that a marriage exists by a:-
- certified copy of an entry in a register of marriages
- marriage certificate or similar document issued under the law of the country where the marriage took place
- declarator of marriage which can be granted by the Court of Session in cases where the marriage is ‘irregular’ and based on cohabitation.
When does a marriage end
Once a legitimate marriage ceremony has been performed in the United Kingdom the marriage remains legally valid, regardless of whether you live together, until a court formally ends it.
For further information about divorce, see Ending a relationship.
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Children
Name of child
Cohabitation
If you are an unmarried mother, you can choose and change your child’s first name or surname. You may choose to give your child your partner’s surname.
If you are an unmarried father, you only have a right to choose or change your child’s name if you have acquired parental responsibilities and rights towards your child by:-
- jointly registering the birth of your child with your child's mother on or after 4 May 2006; or
- entering into a parental agreement with your child's mother; or
- obtaining a court order giving you parental responsibilities and rights.
If more than one person has parental responsibilities and rights towards a child they must all agree on the choice or change of the child's name.
Marriage
The parents of a child must agree on the choice or change of the child’s name. A child does not have to have the father’s surname.
Status of the father
Cohabitation
A man is presumed to be the father of a child if his name is on the birth certificate. The mother’s consent or a court order declaring him to be the father is required for him to put his name on the birth certificate.
Marriage
A husband is presumed to be the father of his wife’s child. He has a right to enter his name on the child’s birth certificate.
Nationality of the child
Cohabitation
The rules about the nationality of children are complicated. A child’s nationality may be affected by either or both their natural parents’ nationality. A child’s nationality may also depend on where and when they were born.
If you are worried about nationality or immigration status you should consult an experienced adviser for example, at a Citizens Advice Bureau. To search for details of your nearest CAB, including those that can give advice by email, click on nearest CAB.
See Help with immigration problems.
Marriage
The rules about the nationality of children are complicated. A child’s nationality may be affected by either or both their parents’ nationality. A child’s nationality may also depend on where and when they were born.
If you are worried about nationality or immigration status you should consult an experienced adviser for example, at a Citizens Advice Bureau. To search for details of your nearest CAB, including those that can give advice by email, click on nearest CAB.
See Help with immigration problems.
Parental responsibilities and rights
Cohabitation
If you are an unmarried mother, you have full parental responsibilities and rights over your child, unless these have been removed by a court.
If you are an unmarried 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.
Marriage
Married parents have joint parental responsibilities and rights over their children (unless a court has decided that these rights should be removed from one, or both of them).
Contact
Cohabitation
If a cohabiting couple separate, and the father has not already acquired parental responsibilities and rights towards his children he would need to go to court to get a contact order giving him the right to contact with the children.
If the couple both have parental responsibilities and rights, both parents have a right to maintain contact with the children. If they cannot agree they can ask the court to make a decision.
Marriage
If you separate from your spouse, you can make any informal arrangement about where the children stay and having contact with the children. If you cannot agree you can ask the court to make a decision.
Maintenance
Cohabitation
Both natural parents are responsible for supporting a child financially. The father is equally responsible even if he is not named on the birth certificate and if he is not living with the mother.
Marriage
Both parents are responsible for supporting a child financially. If the relationship breaks up both parents continue to be responsible.
Adoption
Cohabitation
Cohabiting couples can not adopt a child together. One partner must apply to adopt the child as a single person. For more information about adoption, see Adopting a child in family factsheets.
Marriage
Married couples can adopt children jointly.
Parent’s death
Cohabitation
If a child's mother dies the father can go to court to get parental responsibilities and rights, unless he has already acquired them.
Either natural parent can appoint a guardian in a will or deed, if they have parental responsibilities at the time they make the will or deed.
Marriage
If one parent dies, the other parent automatically has sole parental responsibilities and rights.
If the parents are divorced, the surviving parent will have sole parental responsibilities and rights.
If the parents are divorced and the parent who died had sole responsibilities and rights, the surviving parent will have to go to court to gain responsibilities and rights.
Inheritance
Cohabitation and marriage
Even if there is no will, a child of unmarried and married parents has a legal right to inherit from both parents and the families of both parents.
Marriage
Even if there is no will, a child born within marriage can inherit automatically from both parents and the extended family of both parents.
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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. Your resources and requirements are jointly asessed.
Entitlement to most national insurance contributory benefits, for example incapacity benefit, depends on your own contribution record. You cannot get an increase for a cohabiting partner unless your partner is caring for children.
Cohabiting partners cannot claim bereavement benefits or a retirement pension based on their partner's 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.
Marriage
Married 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 most national insurance contributory benefits, for example incapacity benefit, depends on your own contribution record. You can get additions for a dependant spouse and in some cases for dependant children.
A surviving spouse can claim bereavement benefits, or in some cases, a retirement pension based on a partner's national insurance contributions
Tax
Cohabitation
Each partner in a cohabitation is taxed separately. Each person is entitled to a personal allowance when calculating how much income tax they must pay.
Marriage
Husbands and wives are taxed independently and each partner can claim a personal allowance. Where at least one person in a married couple was born before 6 April 1935, a married couple’s allowance can be claimed as well as the personal allowance. For more information about income tax and personal allowances, see Income tax allowances and amounts.
Pensions
Cohabitation
The provisions 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.
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.
Where a scheme is suitable for cohabiting partners you will need to complete an 'expression of wishes' form, which states who you want your benefits paid to when you die.
Even where a scheme isn’t suitable for cohabiting partners, trustees of the scheme or a union representative might be able to help you if you want the benefits to go to your partner.
Marriage
Occupational pension schemes must offer equal benefits for husbands and wives. They also generally offer benefits for dependants, for example, children. If you joined an occupational pension scheme before 17 May 1990, the rules were slightly different. If you’re a widowed man, you might not get any benefits which the pension earned before that date, although you should get any benefits earned after it.
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.
Marriage
Neither spouse is liable for the other’s debts unless one acted as a guarantor for the other or agreed to a joint liability. However, a spouse can be liable for debts relating to council tax or a social fund loan.
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.
Marriage
Your spouse'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.
Marriage
You may use any name, including your spouse's provided no fraud is intended. A woman does not have to take her husband’s name.
Maintenance
Cohabitation
Cohabiting partners don’t 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.
Marriage
Both spouses 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.
Marriage
A spouse 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.
A man can be charged with raping his partner. However it may be difficult for her to prove her lack of consent if they were living together.
Marriage
The absence of a sexual relationship in a marriage may provide grounds for irretrievable breakdown. Demands for an unreasonable amount of intercourse or refusal of intercourse by either spouse may be grounds for divorce on the basis of unreasonable behaviour.
A man can be charged with raping his wife, whether or not they are living together. However it may be difficult for her to prove her lack of consent if they were living together.
Contraception
Cohabitation
A woman can take all decisions on contraception, sterilisation and abortion without her partner’s consent. A man can have a vasectomy without his partner’s consent.
Marriage
Although a husband’s consent is not legally required, some doctors and clinics may ask for this before performing sterilisation operations, abortions or fitting a contraceptive coil. They may also ask for a wife’s consent before sterilising her husband.
Domestic violence
Cohabitation and marriage
You can go to court to apply for a number of different orders to legally protect yourself if your partner is violent. For more information, see Domestic violence.
Ending a relationship
Cohabitation
A cohabiting couple can separate informally without any need for intervention of the court. If there are children the court has powers to make orders relating to the care of the children.
Marriage
A couple can separate informally but will need to go to court to end the marriage.
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.
Marriage
If a couple split up and they disagree about who owns property, any goods and property acquired during the marriage are presumed to be owned jointly. Gifts and inherited goods belong to the person who received them. Goods acquired before the marriage or 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.
Marriage
Both spouses 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.
Marriage
Both spouses have a right to remain in the home unless a court has ordered otherwise.
If the home is sold a spouse 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 divorce.
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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.
Marriage
If your spouse dies without leaving a will, you will get the home, contents, and part of the remaining estate.
If your spouse 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.
Marriage
Your spouse’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.
Marriage
In civil cases your spouse can be a witness for or against you and can be compelled to give evidence. In criminal cases your spouse can be called as a witness in your defence. Your spouse can be called as a witness for the prosecution but can only be compelled to give evidence if s/he is a victim of the crime or in certain other cases such as child sexual abuse.
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