The Wedding season is upon us once again with couples across Scotland ‘tying the knot’ but what legally changes when you say “I do”?
In Scotland, there is no such thing as “common law” marriage. This means that individuals must register their marriage to be considered “married”. It does not matter how long parties have lived together – without a marriage certificate you are a cohabitant rather than a spouse. The law treats these two types of relationships differently. Apart from the anticipation of your bank balance likely being a bit lighter following the big day, there are a few other changes which cohabiting couples who intend to marry should be aware of. Here is what changes when you say “I do”.
Aliment
Once you are married, spouses are required by law to ‘aliment’ each other. An obligation to aliment your spouse means providing such support as is reasonable in the circumstances for the duration of your marriage. This support is usually provided by pooling effort and resources over the course of the marriage. This obligation to aliment your spouse continues even after you separate, and potentially up to the point that you divorce. Cohabitants, however, are not bound by the obligation to aliment each other either during the relationship or on separation. Instead, they are left with a possible claim on certain jointly owned household items acquired during the relationship and the housekeeping money.
Matrimonial Property
Once you are married, everything that you and your spouse acquire is “matrimonial property”. This covers everything from your first shopping trip following the wedding reception to the rights accruing in your pension. It specifically excludes anything that you inherit or are gifted by a third party during the marriage, although gifts between spouses are “matrimonial property”. Most marriages proceed on the basis that spouses do not consider this at all. It only really comes into its own if you separate and get divorced. Matrimonial property does not occur if you are cohabiting.
Divorce
If you are unhappy in your marriage and would like to leave this would be done through a court process – either annulment or divorce. Cohabitants, however, can merely choose to leave and walk away from each other.
Financial Provision on Separation
The remedies available to the court when a relationship breaks down differs for spouses and cohabitants. Spouses have an entitlement to a fair share of the “matrimonial property” and the option of getting this share by way of a capital sum, transfer of property, a monthly sum, a share of a pension and transfer of any of the items of matrimonial property. A cohabitant, however, can only claim a capital sum based on any economic disadvantaged they have suffered in the relationship or any economic advantage that the other party has derived from their contributions to the relationship.
Rights of Inheritance
People that are married have certain automatic rights to inherit their spouse’s estate – even if there is no Will. Cohabitants have no such automatic rights and must go to court in certain circumstances to try and establish a claim on the death of their partner. In effect, it is not possible to entirely disinherit a spouse in a Will, but it is for a cohabitant.
It is important for couples to be aware of these key legal differences before cohabitants get married and say those all important words – “I do”.
*This article originally featured in The Scotsman on 27 May 2024.
