common-law-wife

[vignon]

Under Scottish Law is there such a thing as a common -law-wife and what rights does she have if she separates from a partner she has lived and bought a house with and kept thier own surnames.

[STIDW]

A common law wife is something of a myth. In Scotland cohabitants have certain rights and can make claims to limited financial provision if they have been disadvantaged by the relationship. For example, if they have given up a career to look after children. There are strict time limits for making claims.

However, s27 Family Law (Scotland) Act 2006 specifically excludes claims to property used by the cohabitants as their main residence in which they lived together. The property will belong to whoever is named on the deeds and if it is jointly held it will be assumed that it is owned 50:50, unless the deeds state otherwise.

[vignon]

Thank you for your reply,most enlightening..

[fredpuli47]

A form of the so-called common law marriage (not a Scots term) did exist in Scotland until 2006, when the Act already referred to abolished it. It was " a marriage by cohabitation with habit and repute" according to the Wikipedia entry on "common-law marriage". It seems unlikely that marriages so created and recognised before the Act abolished it were thereafter not recognised, since a) common sense dictates otherwise and b)marriages under two other recognised forms of irregular marriage created before those were abolished by an Act of 1939, were still recognised as valid thereafter. The article is, however, silent on this point.

[fredpuli47]

The answer to whether this form of irregular marriage is still recognised (and may be created) is in Note 10 to the Explanatory Notes published by the Scottish Executive viz. that. Section 3 of the Act` abolishes it but couples may begin to create such a marriage before, but not after, the Act coming into force (i.e. 4th May 2006), and when the court is considering a declaration of marriage it will take account of any period of cohabitation before and after the Act coming into force.

[vignon]

Thanks for your contributions I think Iwill have to digest some of these Laws.

[STIDW]

"Common Law Marriage

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. Even if you have lived with your partner for many years, you do not have the same rights in law as a married person does. 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..."

http://www.scotland.gov.uk/Publications/2006/0 4/27135238/1

Prior to 2006 there were very few cases of MCHR in Scotland - perhaps on average of 2 a year - and for the most part they were related to claims on a deceased partner's estate or when marriages took place abroad and was not recognised here.

The law on MCHR was uncertain, difficult to apply and the chances of establishing a marriage was negligible therefore claims to financial provision unlikely. The main problems were;

The repute of marriage had to be "substantially unvarying and consistent". - Petrie v Petrie (1911) citing Cunningham v Cunningham (1814)

The intention to get married in the future was inconsistent with regarding oneself as married.

CHR was not available to couples who had lived together without ever pretending to be married or acquiring the reputation of being married.

Complications relating to previous and subsequent marriages.

Informal arrangements were considered too doubtful a basis on which to establish rights to welfare benefits.

[vignon]

STIDW. Once again for your help and pointing me in the right direction for guidance on the Law.