To wonder if “common law husband/wife” is actually a thing in Scotland

[Mammylamb]

I keep hearing people who have been cohabitating for a significant amount of time I’m scotland say they are protected as a common law husband /wife. For example if one person has the house in their name, their partner is entitled to half of it (even if they aren’t married or have a legal agreement to that effect). I always thought the “common law wife” was just nonsense I’m scotland

Yabu: you have legal protection as a common law husband/wife in Scotland

Yanbu: no of course you don’t

No, there is no such thing as a common law spouse in Scottish law.

Nope, although there once was, to some extent:

www.citizensadvice.org.uk/scotland/family/living-together-marriage-and-civil-partnership-s/living-together-and-opposite-sex-marriage-legal-differences-s/

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 had 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 are recognised.

If you want to prove that a 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.

Why are you asking people to vote on something that you can google in 3 seconds though?!

It’s not a thing in Scotland

Thete used to be something in Scottish law that allowed a couple to be considered common law spouses, but it was in quite limited circumstances, I believe, and it's no longer permitted.

Hit the wrong button - YANBU.

There is no such thing.

I’ve googled it, but still have spoken to a few friends very insistent that it is a thing, so just was checking!

There's no such thing as common law husband/wife and it affords no protections in the event of divorce or death.

Someone I know was hugely anti-marriage because its just a piece of paper, its an outdated notion, its a waste of money, common law is just as good as married, and so on. Then she got financially screwed over when she split up from her "common law husband". She's been with her current partner for nearly ten years now, they have a house and a child, and one of the first things she insisted on after their DD was born was that they get married. They had a no frills wedding at the registry office, no guests, no reception, costs them less than £60 but they got the "little piece of paper" that will help protect then and their DD if life goes tits up.

Surely voting is for opinions? This is a situation of fact.

I keep hearing people who have been cohabitating for a significant amount of time I’m scotland say they are protected as a common law husband /wife

Well they are in gor a nasty surprise...

You’re correct that it’s a matter of fact.

But I keep hearing people very insistent that it is a concept in Scotland, so I was wanting to check if i actually knew the facts

I've had an argument with someone insisting that marriage was "just a bit of paper" and then in the next breath saying how she was furious that she was unable to do a thing for her dying partner of 20 years. She couldn't make medical decisions, couldn't make financial one's and had no say in anything when it came to his estranged adult child taking everything when he died. She couldn't even sort his funeral or get his death certificate. Common law means nothing. That "piece of paper" is a very important legal contract!

I still think this way is fair though.

I have a Canadian friend and she split up with a boyfriend of 5 years some time ago. Canada imposes the same rights on a non married partner

She had to pay a financial settlement to a man who wasn't her husband and had no children with.

That doesn't seem right. It would make me very wary of getting involved at all with anyone

But no it isn't a thing in Scotland

Marriage is proof of a legal commitment.
If common law were a thing, people would be making claims against another's finances left, right and centre. Housemates demanding their "common law" husband's estate if they pass and because they live together (as housemates) there's no proof they were not a couple. Or exes claiming they never broke up. On/off partners claiming they weren't off at the time of death. And what length of time would be needed to establish Common Law rights? Would someone be able to have many CL partners? In marriage that would be bigamy.
It's messy and open to abuse. Best leave it as a legal contract and when you want out of the contract, divorce.

It’s quite commonly believed that it’s a thing. My MIL mentioned the other day that someone she knew had just been left by her partner while pregnant with their third child. I asked if they were married and she said no but it didn’t matter because they had lived together as though married and had children so had a common law marriage. Unfortunately, there’s no legal protection for that. The law in Scotland assumes that if you haven’t taken the active step of getting married, you don’t want to be burdened by the legal rights and responsibilities afforded and imposed by marriage. I think that makes sense from a legal perspective but it is alarming how many people think they will have some kind of protection which doesn’t actually exist.

They are kidding themselves and are idiots for not checking. If they split up or one dies, they are in for a massive shock.

I bet that's what some people I know think though. Not bothered about having no assets because long term boyfriend has them. It's really not sensible. Just leave them to it op, if they won't listen to fact, then they never will. Let them make their own mistakes.

Anyone who had established a common law marriage prior to 2006 will still have a common law marriage.
It's quite limited though. One example we were given at uni was a couple who had married on the Saturday "nearest to the bride's 16th birthday" instead of the first Saturday "after" the bride's 16th birthday. She was still 15. The marriage wasn't legally valid, but was enough to start to establish a common law marriage.

People assert all sorts of bollocks.
There is a thread running at the moment about Inheritance, poster after poster declaring that a wife gets everything if a husband dies without leaving a will, and blithely missing all the accurate explanations because they haven’t RTFT.

The Nrxt of Kin myth. There is no legally defined status of Next of Kin in the UK.

Scotch bonnet, the example you give wouldn't have been a common law marriage even when they were legal. One of the criteria was that the couple presented as married and that people who knew them thought of them as married. If people like your MIL knew that they weren't married, then they didn't have a common law marriage.

No, it's not a thing. If people want the rights and responsibilities of marriage then they need to get married.

The confusion in Scotland is because there are some rights for co-habitees, but they are not the same as marriage. It is not the same situation as England and Wales.

There is the right to claim some money if you split. Not 50/50, but if you can show you were financially disadvantaged by the marriage.

If your partner dies you have the right to claim from their estate, if they have no will.

More info here www.lindsays.co.uk/news-and-insights/insights/the-rights-of-scottish-cohabitees

As the pp said there is legal protection for co habiting couples in Scotland, but there is no such thing as common law marriage.

I’m also not sure why you’re asking folks to vote on it, you’ve googled and know there is no such thing, and your friends are talking rubbish.

Scotch bonnet, the example you give wouldn't have been a common law marriage even when they were legal.

There has never been any legal form of common law marriage in Scotland.

Scotland used to recognise three forms of irregular marriage:

1. Marriage de presenti – Marriage by present consent between the couple, but with no witnesses or procession

1. Promise de copula – Where marriage has been promised then followed by consummation

1. Cohabitation with habit and repute – Where a couple lived together for a number of years and saw themselves as spouses.

The first two have been disallowed by statute since the 40s. The latter persisted until the Family Law (Scotland) Act 2006 came into force.

The term ‘common law marriage’ is often used incorrectly to describe situations such as marriage by habit and repute, but they are not the same thing. Common law marriage exists in some jurisdictions (such as parts of Canada) and provides couples with equivalent or similar rights to those of couples who have a statutory marriage. It doesn’t exist in jurisdictions which don’t apply the common law, or have no common law provision for marriage. Scotland is a hybrid legal system with both civil and common law elements, but marriage law falls within civil law, not common law.

I know someone who married abroad and discovered that their marriage wasn't legal here a couple of years later. They had to get married again in a registry office. Prior to 2006 in Scotland by he time they realised there was a problem with the legality of their wedding, they would have established a common law marriage. They'd gone through a wedding ceremony in good faith, all their friends and family regarded them as married, they had wedding photos and celebrated wedding anniversaries.

Anyone in a similar situation now, who went through a faulty wedding ceremony in good faith prior to 2006, will have a common law marriage in Scotland. So, technically, yes, there are still common law marriages in Scotland, but they are a tiny, tiny minority of marriages and the rules are strict.

Scotch bonnet, I did my law degree and qualified as a solicitor in the 1980s, well before the 2006 Act, and the idea that there has never been any legal form of common law marriage in Scotland would have come as a surprise to my lecturer in Family Law!