What rights do unmarried couples have under Scots law?

Who counts as a cohabitant under Scots law?

A cohabitant is, under section 25 of the Family Law (Scotland) Act 2006, either member of a couple who are or were living together as if they were husband and wife, or, for a same-sex couple, as if they were civil partners ^[2]. The definition has no minimum period. Instead, section 25(2) tells the court to consider three things: the length of time the couple have lived together, the nature of their relationship during that period, and the nature and extent of any financial arrangements between them ^[2]. The court in question is the Court of Session or the sheriff ^[2].

This is a question of fact in each case, and a short relationship can qualify if the other features are present. The test is a family one rather than a purely domestic one: two friends sharing a flat are not cohabitants, but a couple who share a household and finances in a relationship like a marriage are. Because the Act speaks of "as if" they were spouses, the law tests the relationship against marriage even though it gives it a smaller set of rights.

The 2006 Act also dealt with an older idea. Before it, Scots law allowed a couple to become married by cohabitation with "habit and repute", a form of irregular marriage. The Act ended that route for relationships after it came into force, so Scotland, like England and Wales, has no common-law marriage in the sense of a marriage arising from living together. The page on the common law marriage myth in England and Wales sets out the comparison.

The House of Commons Library summarises the Scottish position in one line: cohabitants can make limited claims against each other when the relationship ends or when a partner dies ^[4]. That sentence is accurate, but it understates the importance of the fact that Scotland has any statutory scheme at all. Since 2006, a Scottish cohabitant has a route to the court that an English or Welsh one lacks.

How a cohabitant's claim works under section 28 of the 2006 Act

1. Show that the couple were cohabitants: living together as if husband and wife or civil partners, judged by length, nature of the relationship and financial arrangements (s.25)
2. Confirm that the cohabitation ended for a reason other than death (s.28(1))
3. Raise the claim within one year of the day the couple stopped cohabiting (s.28(8))
4. The court weighs the economic advantage the other partner gained from the applicant's contributions against the economic disadvantage the applicant suffered, with offsets (s.28(3)-(6))
5. The court may order a capital sum, a payment towards the economic burden of caring for a child of both partners, or an interim order (s.28(2))

What can a cohabitant claim on separation?

On separation, a Scottish cohabitant can claim household goods, certain money and property, and financial provision, under sections 26 to 28 of the 2006 Act ^[7]. Section 26 deals with household goods, which are presumed to be owned in equal shares by the partners unless they were a gift or inheritance, and section 27 deals with money and property derived from a housekeeping allowance ^[6][7]. The main claim, and the one that attracts most attention, is under section 28.

Section 28 applies where cohabitation ends otherwise than by the death of one or both partners. The court, on an application by a cohabitant, may order the other cohabitant to pay a capital sum, order a payment towards the economic burden of caring after the separation for a child of both partners, or make an interim order ^[1]. A child here means a person under 16, and a relevant child is a child of both cohabitants or a child they accepted as a child of the family ^[1].

The test is one of economic advantage and disadvantage. The court must consider whether, and to what extent, the other partner (the "defender") gained an economic advantage from the applicant's contributions, and whether the applicant suffered an economic disadvantage in the interests of the defender or of a relevant child ^[1]. For a capital sum, the court then offsets the two: the defender's advantage is reduced by the defender's own disadvantage for the applicant or a child, and the applicant's disadvantage is reduced by the advantage the applicant gained from the defender's contributions ^[1].

"Contributions" is a wide word. The Act says it includes indirect and non-financial contributions, such as looking after a relevant child or the family home, and "economic advantage" includes gains in capital, income and earning capacity ^[1]. A partner who gave up a career to raise children, while the other's earning power grew, is the typical case the section was designed for. The Supreme Court considered the section in Gow v Grant (2012), a decision often cited on how the court should approach it.

There are limits. A law firm's commentary notes that section 28 allows only a capital sum, so a court cannot make a property transfer order, and that there is no equivalent of the aliment that a spouse can claim ^[7]. The same commentary describes the assessment as largely an accounting exercise, with no express fairness test of the kind used on divorce ^[7]. These limits explain much of the recent push for reform.

What is the one-year time limit?

The time limit is one year: an application under section 28 must be made within one year after the day the cohabitants cease to cohabit ^[1]. The official legislation site notes that some words of this subsection were omitted with effect from 31 December 2020 by the Civil and Family Justice (EU Exit) (Scotland) (Amendment etc.) Regulations 2020 (SSI 2020/441), a technical amendment that did not remove the one-year rule ^[1]. The Scottish Government's December 2025 consultation confirms that the present rule is a one-year limit from the couple ceasing to live together ^[5].

The consequences are strict. One law firm's article says that the court has no discretion to accept a late claim and points to a lack of public awareness of the limit among the problems with the law ^[7]. The Law Society of Scotland, the same article reports, has called the one-year rule unfair and arbitrary and proposed a two-year limit if any limit is kept ^[7]. A married person facing a divorce has no comparable deadline for financial claims, which is an argument sometimes used against the rule.

The time limit also bears on people leaving abusive relationships. The Church of Scotland, in its response to the Scottish Government on 21 April 2026, asked that the impact on people leaving abusive partners be considered, suggesting that a longer deadline might help but warning that bringing a claim could also enable continued abuse ^[8]. That is the kind of detail that makes a simple limit hard to design.

Practical advice is therefore consistent. A cohabitant who may have a claim should take legal advice promptly after the relationship ends and, if a claim is needed, raise it within the year. Negotiations that go on for months can use up most of the available time.

What happens when a cohabitant dies without a will?

If a Scottish cohabitant dies without a will, the surviving partner has no automatic right to inherit but can apply to the court for provision under section 29. The deceased must have died intestate and domiciled in Scotland, and been cohabiting with the applicant at the time ^[3]. The application goes to the Court of Session or the sheriff and must be made within six months of the date of death ^[3].

The court may order a capital sum from the net intestate estate, a transfer of property from it, or an interim order ^[3]. It must consider the size and nature of the estate, any benefits the survivor receives from elsewhere because of the death, other claims on the estate and any other relevant matter ^[3]. An order cannot give the survivor more than they would have received if they had been the deceased's spouse or civil partner ^[3].

The section operates only after the claims of a surviving spouse or civil partner have been met, because the "net intestate estate" is what remains after tax, other liabilities and the prior rights and legal rights of a spouse or civil partner ^[3]. In practice the survivor's claim comes in competition with the deceased's children, who have their own legal rights. The scheme also applies only on intestacy: a cohabitant who is left out of a valid will cannot use section 29. The Scottish Government's consultation notes that section 78 of the Trusts and Succession (Scotland) Act 2024 will extend the six-month limit to twelve months, a change not yet in force when the consultation was published in December 2025 ^[5].

Compare England and Wales, where an unmarried partner who dies without a will leaves a survivor with no right under the intestacy rules, and where the main route is a claim under the Inheritance (Provision for Family and Dependants) Act 1975. That route is explained on the page about cohabiting partner inheritance rights.

Is Scotland's cohabitation law being reformed?

Yes, a reform is under active consideration but has not been enacted. The Scottish Law Commission recommended an overhaul of sections 25 to 28 in its Report on Cohabitation (Scot Law Com No 261), published on 2 November 2022 ^[9]. The Scottish Government published a consultation on 29 December 2025, which closed on 21 April 2026, saying that the Commission's draft Bill provides a sound basis for reform ^[5].

The Commission's recommendations, as summarised in its executive summary and the consultation, are substantial ^[5][6]. They would replace the "as if husband and wife" test with a definition based on two people, aged 16 or over, living together as a couple in an "enduring family relationship" who are not spouses, civil partners or closely related ^[6]. They would keep the one-year limit but allow a late claim within a further year on "special cause shown", with an absolute bar after two years, and let the former partners agree in writing to extend the first period once, by up to six months ^[5][6].

The test itself would change. Orders would be justified under guiding principles: fair sharing of any economic advantage gained from the other's contributions, fair compensation for economic disadvantage, short-term relief from serious hardship, and fair sharing of the economic burden of caring for a child ^[5][6]. The courts would gain the power to make property transfer orders and payments at intervals for up to six months in cases of serious hardship, although not pension sharing orders, and cohabitation agreements would have a larger role, with the court able to set aside an unfair term ^[5][6].

For death, the Commission did not recommend changing section 29, because the Scottish Government is reviewing succession law, though the consultation asks whether the new definition of cohabitant should also apply to intestacy claims ^[5][6]. It also asks whether the reforms should apply only to couples who separate after the new law starts, a point on which the Church of Scotland has said it opposes retrospective application ^[5][8].

As of 28 October 2026, no Scottish bill implementing these proposals has been found, and the Scottish Government's analysis of the consultation responses was not located. In England and Wales a separate process is under way, described on the page about cohabitation law reform in England and Wales.

Frequently asked questions

How long must a couple live together to count as cohabitants in Scotland?

There is no minimum period. Section 25 of the 2006 Act tells the court to look at the length of time the couple lived together, the nature of their relationship and their financial arrangements. A couple who share a household and finances in a marriage-like relationship can be cohabitants even after a short time.

Can a cohabitant claim the family home in Scotland?

Not directly. A section 28 claim can produce only a capital sum, and the court cannot order a transfer of the property. A cohabitant who owns a share in the home may need separate proceedings, and the Scottish Law Commission has recommended giving the court power to make property transfer orders.

Do the rules apply to same-sex couples?

Yes. Section 25 covers two people of the same sex who are or were living together as if they were civil partners, alongside a man and a woman living as if they were husband and wife. The same financial claims under section 28 are therefore open to same-sex cohabitants.

Can the one-year time limit be extended?

Not under the current law. One law firm's commentary says that the court has no discretion to accept a late claim. The Scottish Law Commission has recommended a possible second year on special cause shown, and a written agreement extending the first period once by up to six months, with a two-year absolute limit. These proposals are not yet law.

Can a cohabitant claim if the partner left a will?

Not under section 29, which applies only if the partner died without a will. A cohabitant who is left out of a valid will cannot use that section. Other legal routes may exist, so specialist advice is needed, and wills are the most direct way for cohabiting partners to protect each other.

Is there common law marriage in Scotland?

No. Scotland formerly recognised a marriage arising from cohabitation with habit and repute, but the Family Law (Scotland) Act 2006 ended that rule for relationships after the Act took effect. Living together today gives a couple the limited rights of cohabitants, not the status of spouses.