The law on cohabitation deals with the obligations and rights of two people who live together as a couple, but who are not in a civil partnership or marriage.
The law now gives same-sex cohabiting couples and mixed-sex cohabiting couples the same protections and obligations. These include:
- being recognised as your partner’s nearest relative, for example, under the Adults with Incapacity (Scotland) Act 2000, the Mental Health (Care and Treatment) (Scotland) Act 2003, and the Criminal Justice (Scotland) Act 2003.
- being able to take over the tenancy of your partner’s rented house if they die and you were living there.
- being able to claim compensation from the Criminal Injuries Compensation Scheme for the death of one’s partner in a criminal act, and the right under the Damages (Scotland) Act 2011, to claim damages from a person causing the death of one’s partner in a wrongful act.
- protection from domestic abuse, under the amended Matrimonial Homes (Family Protection) (Scotland) Act 1981 and the Protection from Abuse (Scotland) Act 2001.
- a foreign cohabiting partner of a UK citizen can usually get permission to reside with their partner in the UK, but only after they have already cohabited as a couple for two years.
- if an employer gives fringe benefits to a mixed-sex cohabiting partner of an employee, the employer must give the same benefits to a same-sex cohabiting partner of an employee, under the Equality Act 2010
- for means-tested state benefits (income support, job seekers allowance, tax credit, housing benefit, council tax benefit, etc), both partners’ incomes are taken into account in calculating the benefit. Before December 5th 2005, cohabiting same-sex couples were treated for these benefit purposes as two single people; now they are treated as a couple, and this means that some people’s benefits have gone down.
- under the Family Law (Scotland) Act 2006, a cohabiting partner can apply to court to inherit a portion of their partner’s property, if their partner dies without a will. The application must be made within 6 months of the partner’s death.
- under the same act, if a cohabiting couple split up, it is possible to apply to court for an order for financial provision from the ex-partner. The rules for this are much weaker than the 50:50 split of property that applies on dissolution of a civil partnership or on divorce – an ex cohabiting partner can only claim compensation for financial disadvantage caused by the cohabitation, and for the future financial costs of looking after a child who is the child of both cohabitants. The application must be made within one year of the split.
- under the Human Fertilisation and Embryology Act 2008, a cohabiting partner can be named as the other parent of a child conceived by fertility treatment at a licensed fertility clinic. Under the same Act, a cohabiting couple in “an enduring family relationship” can use a parental order to become the parents of a child born through a surrogacy arrangement.
- under the Adoption and Children (Scotland) Act 2007 a cohabiting couple who are in “an enduring family relationship” can apply to jointly adopt a child, and one partner can apply to adopt their partner’s child.
Taken together, these legal rules are rather weaker than the protections and obligations the law gives civil partners and married couples.
There is information about the rules which currently apply when a foreign same-sex or mixed-sex cohabiting partner of a UK citizen wants to live with their partner in this country, on the UK Border Agency website. It should be noted that these fairly strict rules do not apply to citizens of the European Economic Area (the EU plus Norway, Iceland and Lichtenstein) or to citizens of Switzerland, all of whom have a much broader right to live and work in the UK.