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Living together and civil partnership - legal differences

This information applies to Scotland

This item is about the legal differences between civil partnership and living together. 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 living together 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 - where to get advice.

Cohabitation

Although there is no specific legal definition of living together, it generally means living together as a couple without being in a civil partnership or married. Living together with someone is sometimes called cohabitation. 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 or living together agreement 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 the same rights and responsibilities as 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 ends on the death of one partner or following a formal process called dissolution. Following the introduction of same sex marriage in Scotland it's also possible for a same sex couple to convert an existing civil partnership to a marriage. The civil partnership ends on the conversion.

For further information on civil partnership, see Registering a civil partnership.

For further information on converting a civil partnership to a marriage, see Getting married.

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Children

Parental responsibilities and rights

Living together

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. However if a child is conceived by donor insemination or fertility treatment on or after 6 April 2009 a same-sex partner can be the second legal parent.

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. If a child is conceived by donor insemination or fertility treatment on or after 6 April 2009 a civil partner can be the second legal parent and have automatic parental responsibilities and rights towards the child.

Adoption

Living together

Same-sex couples who live together can adopt a child together.

Civil partnership

Civil partners can adopt a child together.

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Money

Benefits and tax credits

Living together

A couple who live together are treated in the same way as a married couple 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 - you cannot get an increase for a partner who lives with you unless your partner is caring for children. These benefits include:-

  • incapapcity benefit
  • contributory employment and support allowance
  • maternity allowance
  • contributuion-based jobseeker's allowance.

You cannot claim bereavement benefits or a retirement pension based on your partner's national insurance contribution.

Other benefits, for example, disability living allowance and attendance allowance are not affected by whether or not you live with your partner.

A couple who live together can claim child benefit for any children who live with them.

Civil partnership

Civil partners are treated as any other couple who are living together 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

Living together

When you live together, each partner is taxed separately. Each person is entitled to a personal allowance when calculating how much income tax they must pay.

Civil partnership

Each partner in a civil partnership is treated separately for tax purposes.

Pensions

Living together

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 couples who live together 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 partner's national insurance contributions.

If you split from your partner you have no automatic right to your partner's pension. You may have no automatic right to a 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

Living together

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, your 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.

Student grants and loans

Living together

Your 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

Living together

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

Living together

You and your partner do not automatically have a duty to maintain each other financially when the relationship ends, unless you 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 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

Living together

Next of kin is usually defined as the nearest relative by blood or marriage. You can argue that your 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

Living together

There is no legal assumption that two people who live together should have a sexual relationship.

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.

Domestic violence

Living together

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

Living together

A couple who live together can separate informally without any need for intervention of the court.

Civil partnership

A couple can separate informally but will need to go to court to dissolve the civil partnership.

Possessions and gifts

Living together

If a couple split up and they disagree about who owns possessions, any household goods (except money, securities, vehicles or pets) which were bought or acquired during the time they lived together are presumed to be owned equally. Goods acquired before this time 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 possessions, any goods bought or 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

Living together

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

Living together

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 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

Living together

If your 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 living together 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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Living together

Your 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

Living together

Your 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 spouse or 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.

Where criminal proceedings started on or after 28 March 2011 your civil partner can also be called as a witness for the prosecution and can be compelled to give evidence. This means they may have to give evidence against you. However, if your civil partner is a co-accused in the proceedings they cannot be compelled to give evidence.

Where criminal proceedings started before 28 March 2011 your civil partner could also be called as a witness for the prosecution, but could only be compelled to give evidence in very limited circumstances.

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