Living together, marriage and civil partnerships - legal differences

There are legal differences between couples who: 

• are married or in a civil partnership 

• live together without being married or civil partners. 

In some areas of the law, couples who lives together might have the same rights as married couples or civil partners, while in other areas of the law your rights might be different.

Many areas of the law covered on this page can be complex and you might need legal advice for some issues.

Marriage and civil partnerships

A civil partnership is a legal relationship which can be registered by you and your partner. A civil partnership gives you the same legal rights as a marriage. Read more about registering a civil partnership. 

You can convert a civil partnership into a marriage. Read more about getting married.

Couples who live together (cohabitation)

Living together as a couple without being married or in a civil partnership is sometimes called cohabiting or cohabitation. 

There’s no single legal definition of cohabitation. In different areas of the law, cohabitation means different things and gives you different rights. 

Cohabitation agreements

If you want to formalise your status with a partner, you can draw up a cohabitation agreement for living together. This sets out your rights and obligations towards each other, for example:  

• each partner’s rights to the home and possessions 

•  arrangements for children.

A cohabitation contract can be difficult to enforce legally, especially while you’re still together. However, it can be useful to remind you of your original intentions, or if you break up.

Living abroad with your partner

If you and your partner are planning to move abroad, you should check the laws and social attitudes in the country you’re moving to. In some countries, you cannot live together if you’re not married or in a civil partnership. In other countries, it might be allowed but socially unacceptable.  

Some countries might give cohabiting couples more or less legal rights than Scotland. This could include parental responsibilities and rights towards children.  

If you’re moving abroad, you should check the country’s immigration rules. You can contact the country’s embassy for advice. You can find a list of foreign embassies in the UK on the GOV.UK. 

If you’re a same-sex couple moving abroad

If you and your partner are planning to live together abroad, you should check the laws and social attitudes in the country you want to move to. The International Lesbian, Gay, Bisexual, Trans and Intersex Association (IGLA) has a database on the laws in different countries. You can read more about the rights of same-sex couples in different countries on the IGLA World Database website.

Children

Parental responsibilities and rights

Parental responsibilities mean the things you must do to look after your child. Parental rights include being able to make choices about where your child should live and how your child is brought up. 

All mothers have parental responsibilities and rights as soon as they give birth, but not all fathers, step-parents or same-sex couples have parental responsibilities and rights. You can check if you have parental responsibilities and rights on mygov.scot. 

If you don’t have parental responsibilities and rights, you can ask a court to grant them. to you. You might need to use a solicitor. 

Even if you don’t have parental responsibilities and rights, you have a general duty to safeguard the health and welfare of any children under 16 in your home. 

Contact with children

Whether you’re married, in a civil partnership or a couple who lives together, if you both have parental responsibilities and rights but you cannot agree about arrangements for contact with a child, you can ask a court to decide. 

If you don’t have parental responsibilities and rights and your ex-partner doesn’t want you to have contact with the child, you must apply to a court for contact. 

Child maintenance

Whether you’re married, in a civil partnership or a couple who lives together, a birth mother and biological father are both responsible for supporting their child financially. 

If you’re a father, you’re still financially responsible even if you’re not living with the mother or named on the birth certificate, as long as there’s proof you’re the father.  

If you cannot agree on maintenance, the parent who has day-to-day care of the child can apply to the Child Maintenance Service (CMS). 

If you both have parental rights, you might need an agreement or a court decision to decide who pays maintenance. This also applies to same-sex couples.  

If you’re a step-parent, you might be financially responsible for your step-child even if you don’t have parental rights. However, the CMS can only ask a biological or adoptive parent to pay child maintenance. 

Read more about child maintenance. 

Money and benefits

Benefits

Whether you’re married, in a civil partnership or a couple who lives together, all couples are treated the same way for means-tested benefits. Your partner's income and capital is taken into account when working out your benefit entitlement. 

Some benefits are based on your National Insurance contributions. These are usually based on your own contributions – not your partner’s. 

Debts

Whether you’re married, in a civil partnership or a couple who lives together, you’re not responsible for your partner’s debts unless:  

• you acted as a guarantor for them 

• you agreed to share the debt – known as joint liability 

• the debt is something you’re both responsible for, such as Council Tax for a home you share.  

You can check if you have to pay a debt.  

Life assurance

You can take out a life assurance policy on your partner’s life. 

If you’re a couple who lives together – you’ll usually have to show that you have an insurable interest, for example that you share financial responsibilities, and it would be hard for you to manage them if your partner died. 

If you’re married or in a civil partnership – you don’t have to show you have an insurable interest. 

Whether you’re living together, married or in a civil partnership – you can take out a policy on your own life and leave the money to your partner in your will or through a trust. You don’t need to prove an insurable interest to do this.

Tax

Whether you’re married, in a civil partnership or a couple who lives together, both of you are taxed separately and have your own personal tax allowance. 

If you’re married or in a civil partnership and one of you earns less than your personal allowance, you might be able to claim Marriage Allowance. This lets you transfer some of your personal allowance to your partner. Read more about Marriage Allowance on GOV.UK. 

If you or your partner transfer assets to each other, you might have to pay capital gains tax if you’re a couple who lives together. You won’t usually have to pay capital gains tax if you’re married or civil partners. You can check where to get tax advice. 

Relationship

Choice of surname

Whether you’re married, in a civil partnership or a couple who lives together, you can use any name, including your partner's, as long as no fraud is intended. Read more about changing your name. 

Maintenance of a partner – if you're living together

You don’t automatically have to support each other financially if your relationship ends, unless you have an agreement to do this. However, you can apply court for a limited financial settlement. You must do this within 1 year of the relationship ending.  

The court will consider if 1 partner has been financially disadvantaged because of decisions made during the relationship. For example, if 1 partner gave up their career to look after children, the court would look at whether this affected how much they could earn after the relationship ended.  

Read more about ending a relationship when you're living together.

Maintenance of a partner – if you’re married or civil partners

Both partners have an equal duty to support each other financially. This applies while you’re together and if your relationship ends. Read more about separating in a marriage or civil partnership.

Next of kin

Next of kin is usually defined as the nearest relative by blood, marriage or civil partnership. A husband, wife or civil partner is always acceptable as next of kin.  

If you’re a couple who lives together, you can ask for your partner to be accepted as next of kin, but some organisations might not accept this.

Possessions and gifts

It can be difficult to establish ownership of shared possessions if your relationship breaks down. The general rule is that anything owned by you before you started living together still belongs to you, and that gifts and inherited goods belong to the person who received them. 

If you’re married or in a civil partnership:

• goods and possessions acquired during the marriage or civil partnership are presumed to be owned jointly – except personal goods 

• a gift or present given to you both as a couple might belong to the partner whose friend or relative gave the gift

• if one partner gives the other housekeeping money, anything bought with savings from it is usually owned jointly. If there’s a court dispute, those possessions will normally be divided equally. 

If you were a couple who lived together:  

• if either partner gives the other money to pay for household expenses, anything bought with that money is usually presumed to be owned equally

• household goods bought or acquired while you were living together are presumed to be owned equally. 

Household goods are any goods except:  

• money  

• securities 

• vehicles 

• pets. 

Sexual relationship

If you’re married or in a civil partnership, the absence of a sexual relationship might provide grounds for divorce or dissolution of the civil partnership. This is known as irretrievable breakdown.  

In any type of relationship, excessive or unreasonable demands for sex could be domestic abuse. Get help for domestic abuse.

Housing

Council tenants

Whether you’re married, in a civil partnership or a couple who lives together, if you have a Scottish secure tenancy and want to add your partner as a joint tenant, they must have lived in the property as their only or main home for at least 12 months before you apply. The 12 months only starts when you tell the landlord they’re living in the property.  

Private tenants - if you’re a couple who lives together

A partner who is not named on the tenancy agreement has no rights to remain in the home if the tenant doesn’t want them to.  

The non-tenant might be able to apply to court for the right to remain in the home. If both partners moved in together, it might be possible to prove there's 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 a court. Read more about housing rights at the end of a relationship.  

You might have different rights if your partner has been violent towards you. Read more about domestic abuse. 

Private tenants - if you’re married or civil partners

You both have a right to remain in the home. It doesn’t matter whose name is on the tenancy agreement, unless a court has ordered otherwise. 

Owner-occupiers – if you’re a couple who lives together

If you and your partner live in owner occupied property and only 1 of you is the owner, only the owner has the right to stay in the home. 

If the owner wants you to leave, you have to go unless a court has given you rights to stay. If you have children a court might give you rights for 6 months to stay in the home even when you don't own it. You will need more advice about this.  

If the home is sold, you cannot stop the sale. You can ask a court for a limited right to stay in the home. You’re not entitled to a share of the sale proceeds unless you’re a joint owner or you can prove you made a financial contribution. 

You can read more about ending a relationship when you’re living together. 

Owner-occupiers – if you’re married or civil partners

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

If the home is sold, you have the right to stay in the home unless you agreed to the sale. You’re not entitled to a share of the sale proceeds unless you’re a joint owner, but you might be able to claim a share within a divorce or dissolution settlement.

Death and inheritance

Banking

Whether you’re married, in a civil partnership or a couple who lives together, if your partner dies and you have separate bank accounts, the balance in their account becomes part of their estate. It cannot normally be used until the estate is settled. 

If your partner dies and you have a joint bank account, you will not automatically have access to all the funds in the account. What happens depends on the agreement made with the bank when the account was opened – this is known as the mandate. Read more about what happens with joint bank accounts if your partner dies. 

Bereavement benefits

If your husband, wife or civil partner dies, you can usually get Bereavement Support Payment.  

If you were a couple who lived together, you might be able to get Bereavement Support Payment if:  

• you have a child 

• you were pregnant. 

Read more about Bereavement Support Payment. 

Compensation

If your husband, wife or civil partner dies in an accident or because of negligence, you might be able to claim compensation. 

If you were a couple who lived together, you might be able to claim compensation if you were financially dependent on your partner.  

Read more about compensation claims for personal injuries. 

Inheritance – if you were a couple who lived together

If you’re living with a partner and you want to make sure your partner can inherit from you, you should make a will. Read more about making a will. 

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 you owned property jointly. You can apply to court for a share of your partner’s estate. You must do this within 6 months of their death. Read more about dealing with the affairs of someone who has died. 

If property is left to you, you might have to pay inheritance tax if it’s valued over a certain amount. You can check where to get tax advice. 

Inheritance – if you were married or civil partners

If your husband, wife or civil partner dies without leaving a will, you will get:  

• the home 

• contents 

• part of the remaining estate. 

If your husband, wife or civil partner leaves a will which leaves little or nothing to you, you can claim legal rights to part of the estate. Read more about dealing with the affairs of someone who has died. 

If property is left to you, you do not have to pay inheritance tax on it. You can check where to get tax advice. 

Personal and workplace pensions

Many pension schemes will ask you to nominate a beneficiary - who you'd like to receive your pension money if you die. You can nominate your partner, including a partner you're not married to or in a civil partnership with.

The pension provider or trustees will usually follow your wishes - but they don't have to. What happens depends on the type of pension and the rules of your pension scheme. You can read about what happens to your pension when you die on the MoneyHelper website.

Before 17 May 1990, most workplace pensions offered benefits to a wife and children on the death or incapacity of a husband, but did not offer these benefits to a husband on the death or incapacity of a wife. If a wife joined a workplace pension before 17 May 1990, her husband might not get any benefits which the pension earned before this date – but he should get any benefits earned after it. 

If you’ve joined a workplace pension since 17 May 1990, it must offer equal benefits to husbands, wives and civil partners.

State Pension

If your husband, wife or civil partner dies, you might be able to inherit their State Pension or increase your State Pension. Read more about inheriting State Pension from a husband, wife or civil partner on GOV.UK. 

If your partner dies but you were not married or civil partners, you cannot inherit their State Pension or increase your State Pension.

Discrimination in employment

You must not be discriminated against in employment because you're married or in a civil partnership. 

Your don't have this characteristic if you’re:  

• single 

• living with someone as a couple without being married or civil partners 

• engaged to be married but not married 

• divorced or a person whose civil partnership has been dissolved. 

You can check if your problem at work is discrimination.

Immigration

Your partner can apply for a partner visa if they’re:  

• your husband, wife or civil partner 

• your proposed civil partner or someone you’re engaged to marry 

• a partner you’ve been in a relationship with for at least 2 years. 

Read more about getting visas for your partner to live in the UK.

Legal aid

Whether you’re married, in a civil partnership or a couple who lives together, your partner’s income and capital is taking into account when assessing your eligibility for legal aid, unless you’re taking legal action against each other. Read more about help with legal costs.

Witnesses

Whether you’re married, in a civil partnership or a couple who lives together, your partner can be called as a witness for or against you in both civil and criminal cases. Your partner can be compelled to appear and give evidence. 

If you’re married or in a civil partnership and your partner is co-accused in criminal proceedings, they cannot be compelled to give evidence.