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Living together and same-sex marriage: legal differences

This advice applies to Scotland

This item is about the legal differences between living together and marriage for same-sex partners.

You can use this item to direct you to the key areas of law which determine your rights whether you are living together or married.

Living together

Although there is no specific legal definition of living together, it generally means to live together as a couple without being married. Living together with someone is sometimes called cohabitation. In different areas of the law, living together 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.

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 and 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.

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.

Parental responsibilities and rights

Parental responsibilities and rights for children will not be affected by the legal change of a couple who live together getting married. You both have a general duty to take care of anyone 16 and under who lives with you.

You can also get help to understand parental rights and responsibilities from a Citizens Advice Bureau - where to get advice.

Maintenance of your partner

Living together

You and your partner don't automatically have a duty to maintain each other financially if 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.

Marriage

Both spouses have an equal duty to maintain each other.

Money

Welfare benefits and tax credits

All couples, whether married or living together are treated in the same way when they are assessed for entitlement to most welfare benefits, Working Tax Credit or Child Tax Credit. If they are claiming means-tested benefits, they will be expected to claim as a couple, and the income, savings and financial needs of both partners are taken into account.

There are different rules about claiming the different benefits and tax credits. To find out more about a particular welfare benefit or tax credit, see Benefits.

For more information about incapacity benefit, employment and support allowance, disability allowance and attendance 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. If one partner gives away assets to the other partner capital gains tax may be due.

Marriage

Same-sex spouses are taxed independently and each partner can claim a personal allowance. When 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. If one spouse gives assets to the other capital gains tax is not usually payable. For more information about income tax and personal allowances, see Income tax allowances and amounts.

Pensions

Living together

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 couples who live together 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 couples who live together, 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 spouses. 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.

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, rent of a joint tenancy or a joint mortgage 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, rent for a joint tenancy or a joint mortgage 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.

Marriage

Your spouse's income will be taken into account when deciding your eligibility for a student grant or loan.

Choice of name

Living together

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.

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.

Marriage

A spouse 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.

Marriage

The absence of a sexual relationship in a marriage may provide grounds for divorce.

Possessions and gifts

Living together

If a couple who live together 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 received them.

Marriage

If a couple split up and they disagree about who owns property, a general rule is that any goods and possessions acquired during the marriage are presumed to be owned jointly (not personal goods). Gifts and inherited goods belong to the person who received them. Goods acquired before the marriage belong to the person who acquired them unless they were bought while living together and for the purposes of living together, for example, household goods that were shared.

Housing

Tenants

Living together

A partner who is not a tenant will have no rights to live 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 so that each partner has equal rights to live in the property.

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 or they start a tenancy in their own name.

Marriage

Both spouses have a right to live 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 live in the home. This is called the 'right to occupy'.

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 what financial contribution they made.

Marriage

Both spouses have a right to remain in the home unless a court has ordered otherwise.

Death of a partner

Inheritance from partner

Living together

If your partner dies without leaving a will, their estate will be distributed according to the rules that apply when there is no will. These are called the rules of 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.

If you are living together you both need to make wills naming each other as a beneficiary if you wish to ensure that you can inherit from each other.

Marriage

If your spouse dies without leaving a will, prior rights and legal rights usually mean that you will inherit 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.

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.

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.

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.

Marriage

In criminal cases in which proceedings started on or after 28 March 2011, a spouse of an accused person is a competent and compellable witness for any party to the proceedings. This means that someone may have to give evidence against her/his spouse. However, when the spouse is a co-accused in the proceedings s/he cannot be compelled to give evidence.

In civil cases, a spouse is a competent witness and can be compelled to appear and give evidence.

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