18th May 2018

Should I buy a home before or after marriage? – Legal rights to consider

This weekend we celebrate the Wedding of the Year as Prince Harry and Meghan Markle get married at St George’s Chapel.  The happy couple will have been together for nearly 2 years when they tie the knot, but for many couples nowadays, marriage happens a lot later into a relationship, or not at all with more and more couples choosing cohabitation over marriage. The Family Law (Scotland) Act 2006 introduced a number of rights for cohabiting couples, but there are still a number of differences between the rights of a married couple and cohabiting couple.  We explore how these rights should be considered when buying a house together.

1.Title to the property

Ownership of a property is deemed by whose name is on the title deeds. When buying a property to live in with either a spouse/civil partner or cohabitant you should consider how title is to be taken.  Title can be taken in equal shares or you may decide to take title to the property in unequal shares, dependant on the contributions made by each party.

Additionally, you should consider whether title should pass by survivorship or pro indiviso.  A survivorship clause means that if one party dies, the property automatically transfers to the survivor.  A pro indiviso share would pass in terms of the deceased’s Will or by the Laws of Succession where the deceased did not have a Will.  If you are married, you would have a right to make a claim against the Will of your Spouse/Civil Partner, but a co-habiting partner would not.  As a cohabitant, you can make a claim against the estate where there is no Will, but this claim must be made within 6 months and is not an automatic right such as that of a Spouse or Civil Partner.

Before purchasing a property, you should discuss with your solicitor the different options for taking title to the property in order to determine which option is best suited for your personal and financial circumstances.

2.Occupancy rights

Where title to the property is in joint names, you have a legal right to live in the property and cannot force spouse or partner, or be forced by your spouse or partner to leave the property without a court order. This applies to married and cohabiting couples.

Where you are married and do not have your name on the title deeds, you automatically acquire occupancy rights.  You can live within the property indefinitely until you have divorced or have chosen to leave the property for more than 2 years and have not lived with your spouse during this time.

If you are cohabiting and do not have your name on the title deeds, you do not automatically acquire occupancy rights.  Your partner can ask you to leave the property, whether there are children or not.  You can apply to the court for occupancy rights and assert your right to stay there by showing you had made a financial contribution to the property, whether it be contributions towards the mortgage/bills or home improvements.  However, the court process can be costly and lengthy and can be opposed by your partner. Where occupancy rights are granted by the court, it is only for up to 6 months, at which point you can apply to have these renewed.

This is a complex area of law and if you find yourself in this situation, you should seek the advice of your Solicitor.

3.Cohabitation agreements

Cohabitation agreements are one way of providing you with the assurance that you and your family are protected in the event of the breakdown of your relationship.  The cohabitation agreement would specify what happened to your assets, including the property, upon separation and can also incorporate occupancy rights.

Cohabitation Agreements do not only help decide what should happen following the breakdown of a relationship, but can also help determine what contribution each party makes to the property, for example, who is responsible for the payment of the mortgage, or what contributions should be made to the joint account for home renovations, grocery shopping etc.

Cohabitation Agreements can be extremely beneficial where you have family from a previous relationship and can provide you with the comfort of knowing your financial interest in a relationship has been protected to ensure that if the relationship breaks down, you have maintained some financial security for your children.

Again, this is a very complex area of the law that can be affected by a number of factors.  If you would like any further advice regarding the above matters, please contact Blackdders on 01382 229222.

Megan Paterson, Solicitor
Blackadders LLP





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