The Common Law Wife Who Never Existed: Where Cohabiting Couples in Scotland Really Stand

Of all the things people believe about Scots law, this one is the most persistent and the most expensive.

The idea goes something like this. If you live with your partner for long enough, seven years is the figure most people quote, the law starts treating you as though you were married. You become a common law wife or husband. If the relationship ends, or if your partner dies, you are protected.

It is not true. It has not been true for a very long time, and the version people have in their heads was never quite true in the first place.

That matters more every year. The 2022 Scotland Census recorded that the number of cohabiting households has risen by more than a quarter since 2011, and has grown by over 80% since 2001. A great many couples in Dunfermline and across West Fife are living together, raising children together and buying homes together on the strength of an assumption that will not survive contact with a court.

So What Do You Actually Have?

Cohabiting couples in Scotland do have rights. They are simply narrower and more conditional than most people imagine, and they come from sections 25 to 29 of the Family Law (Scotland) Act 2006.

Section 25 sets out who counts as a cohabitant, which broadly means two people living together as though they were spouses or civil partners. In deciding that question, a court looks at how long you lived together, the nature of the relationship, and the extent of any shared financial arrangements. There is no magic number of years.

Sections 26 and 27 create some sensible presumptions about ownership. Household goods bought during the relationship are presumed to be owned equally, whoever paid, and money derived from a housekeeping allowance is presumed to be shared. Useful, but hardly life changing.

The provision that matters is section 28. If your relationship ends other than by death, you can apply to a court for a capital sum. The court considers whether your former partner gained an economic advantage from your contributions, and whether you suffered an economic disadvantage in their interests or in the interests of a child. There is also provision for a payment reflecting the future burden of caring for a child under sixteen.

Read that carefully, because of what it does not say.

There is no right to a share of the house simply because you lived in it. There is no ongoing maintenance in the way a former spouse might receive it. There is no pension sharing. There are no prior rights or legal rights, which are the automatic entitlements that a surviving spouse enjoys. And the court has broad discretion, which is another way of saying that even a good claim is difficult to advise on with confidence.

If the family home is in your partner’s sole name, you do not automatically have the right to stay in it either. You can apply to the court for occupancy rights, but that is a time limited protection which has to be sought, not something you already hold.

The One Year Clock That Nobody Sees Coming

Here is the part that causes the most damage in practice.

A section 28 claim must be made within one year of the date the couple ceased to cohabit. Not a year from the divorce, because there is no divorce. Not a year from when things were finally sorted out. One year from the day you stopped living together as a couple.

The deadline is absolute. The court has no discretion to allow a late application, however good the reason. Illness, grief, a hope that things might be patched up, being talked into waiting by the other party, none of it makes any difference.

Nor is there a comfortable fallback. Claims based on unjustified enrichment have been attempted where the year has been missed, and the Inner House made its view fairly clear in Pert v McCaffrey in 2020. Missing the section 28 deadline does not open another door.

A year sounds generous when you are standing in the wreckage of a long relationship. It is not. Between finding somewhere to live, sorting out the children and simply getting through the days, twelve months disappears at frightening speed. We would always rather have an early conversation that turns out to be unnecessary than a late one that comes too late to help.

If Your Partner Dies Without a Will

This is where the myth does the most harm, and where the clock is even shorter.

If a cohabitant dies without a valid will, the survivor can apply to the court under section 29 of the same Act for provision from the estate. The award is discretionary, and it cannot exceed what the survivor would have received had they been the deceased’s spouse or civil partner.

The application must be made within six months of the date of death.

Six months, while you are grieving, while an executor is being appointed, while paperwork you have never seen before arrives in the post. Again there is no discretion to extend it. The Scottish Parliament has already legislated to double that period to twelve months, in section 78 of the Trusts and Succession (Scotland) Act 2024, but at the time of writing that provision has not been brought into force. The six month rule still applies.

There is a further trap worth knowing. Section 29 only operates where there is no valid will. If your partner left a will that makes no provision for you, this route is closed to you entirely. A surviving spouse would have legal rights in that situation. A surviving cohabitant does not.

Which is the strongest argument we know of for the pair of you sitting down and making wills, an afternoon’s work that removes every one of these problems at a stroke.

Change Is Coming, But It Has Not Arrived

There is reform in the pipeline, and it is genuinely worth knowing about.

The Scottish Law Commission published its Report on Cohabitation back in 2022, together with a draft Bill. It recommended a modernised definition of cohabitant, focused on whether the couple were in an enduring family relationship rather than on whether they resembled a married couple. It recommended a clearer test for the court to apply, a wider range of remedies, and a more flexible approach to the time limit.

The Scottish Government then consulted on those recommendations, and on possible reform of the rules that apply when a cohabitant dies without a will. That consultation closed on 21 April 2026.

With a new Parliament now sitting, the responses will feed into whatever the Government decides to bring forward. There is, as yet, no bill and no timetable.

So the position is this. The law is widely accepted to need improvement, the work to improve it has been done, and none of it has happened. Until it does, the one year deadline, the six month deadline and the narrow remedies are the law that will be applied to your case.

Planning around the law we have is rather more sensible than waiting for the law we might get.

What You Can Do This Month

None of this requires you to get married, and none of it requires Parliament to do anything.

A cohabitation agreement, drawn up as a formal Minute of Agreement, lets you set out in advance who owns what, how contributions to the mortgage and the deposit are to be treated, and what happens if you separate. Couples find these conversations awkward for about ten minutes and then discover they are a relief. They are considerably cheaper than a court action and vastly less painful.

Check how your home is actually titled. If you bought together, find out whether there is a survivorship destination in the deeds, because that determines what happens to your partner’s share on death and it may not be what you assume.

Make wills, both of you. If you have children from an earlier relationship, this matters twice over.

Grant powers of attorney. A cohabitant has no automatic authority to make decisions about a partner who has lost capacity, and families discover this at the worst possible moment.

And keep a note of significant financial contributions. If you paid the deposit, funded the extension, or gave up work to look after the children, that is exactly the sort of thing a court weighs under section 28, and it is far easier to evidence at the time than five years later.

Talk to Us

If you are living with a partner and have never taken advice about where you stand, or if a relationship has recently ended and you are wondering whether you have a claim, please come and speak to us. If a relationship ended within the past year, or a partner has died within the past six months, please do it this week rather than next month.

Charlotte Cockburn Gillies, Senior Associate, advises clients across Dunfermline and West Fife on separation, cohabitation agreements, wills and powers of attorney. You can reach Charlotte at maloco mowat parker, 6 to 8 Bonnar Street, Dunfermline, Fife KY12 7JR, or by calling 01383 629 720.

You can also read more about our family law services and our earlier guidance on cohabiting couples and finances on separation.