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Living together and opposite sex marriage: legal differences

This information applies to Scotland

This item is about the legal differences between marriage and living together. This information is for opposite sex couples. For information on same sex couples see Living together and same sex marriage: legal differences.

You can use this item to direct you to the key areas of law which are affected by living together and marriage.

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.

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.

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 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, 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 Getting divorced.

Children

Name of child

Living together

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

Living together

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

Living together

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 - where to get advice.

More about immigration.

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 - where to get advice.

More about immigration.

Parental responsibilities and rights

Living together

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

Living together

If a 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

Living together

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

Living together

Couples who live together in an enduring family relationship can adopt a child together. For more information about adoption, see Adopting a child [PDF 130 kb] in family factsheets.

Marriage

Married couples can adopt children jointly.

Parent’s death

Living together

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

Living together 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.

Money

Benefits and tax credits

Living together

A couple who live together is 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:-

  • incapacity benefit
  • contributory employment and support allowance
  • maternity allowance
  • contribution-based jobseeker's allowance.

You cannot claim bereavement benefits or a retirement pension based on your partner's 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 benefit for any children who live with them.

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.

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 capital gains tax may be due.

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. If one spouse gives assets to the other spouse they do not usually have to pay capital gains tax. 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 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

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.

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

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.

Relationship

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. A woman does not have to take her husband’s name.

Maintenance

Living together

You and your partner don’t 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.

Marriage

Both spouses 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.

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 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.

Contraception

Living together

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

Living together 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 abuse.

Ending a relationship

Living together

A couple who live together 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.

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 receives them.

Marriage

If a couple split up and they disagree about who owns property, any goods and possessions 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.

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.

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

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 they made a financial contribution.

Marriage

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

If the home is owned by one spouse and that person wants to sell the property the other spouse can continue to occupy the home until a court orders otherwise. 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 if they can prove that they made a financial contribution.

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.

Marriage

If your spouse dies without leaving a will, as you have prior rights and legal rights you are likely to 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 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.

Where criminal proceedings started on or after 28 March 2011 your spouse 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 spouse is a co-accused in the proceedings they cannot be compelled to give evidence.

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