Moving in Together: Your Rights

Last month we teamed up with ESPC to chat all things understanding your rights when moving in with your partner as an unmarried couple. First up we heard from Megan at ESPC about why to choose ESPC for your property journey and then we heard from legal experts Paige and Sofia about how to navigate the complexities of property ownership and personal planning.

Why Choose ESPC for Your Property Journey?

When it comes to finding your perfect home or investment property, ESPC is your trusted partner every step of the way. Here’s why more than 80% of properties in Scotland are listed on ESPC before appearing on other platforms:

• Exclusive Early Access: Be the first to see new properties with instant access to home reports.

• Local Expertise: Their regional property specialists provide personalised advice and insider knowledge on any local area.

• The Property Lounge: Located in the city centre, this is your hub for expert guidance, featuring the popular Ask the Expert service and regular drop-in sessions with legal and property professionals.

• My ESPC Alerts: Stay ahead of the market with our tailored property alerts, weekly newsletters, and notifications the moment a property matching your criteria hits the market.

Expert Legal Advice at ESPC

ESPC is proud to collaborate with local legal experts to help you navigate the complexities of property ownership and personal planning. Here are insights from two of our trusted advisors:

• Paige, Associate at Lindsays: Specialises in Divorce, Separation, and Home Purchasing.

• Sofia, Private Client Solicitor at Thorntons: Expert in Wills, Powers of Attorney, and Succession Planning.

Understanding Cohabitation and Your Rights

What is Cohabiting?

Cohabiting means two people living together as if they were spouses. This applies only to romantic relationships, not friends sharing a home.

Cohabitation in Scotland Today

• 17.3% of Scotland’s population were cohabiting in 2019.

• By 2022, over 1.26 million couples were cohabiting, with numbers steadily increasing.

Yet, cohabitees’ legal rights remain limited compared to married couples. This often raises important questions about property ownership, financial contributions, and what happens if relationships end.

Why Consider a Cohabitation Agreement?

When purchasing property together, especially if one partner contributes more equity, a Cohabitation Agreement is essential. This legally binding contract specifies how assets like property will be divided if you separate, allowing arrangements to be as simple or detailed as needed, including:

• What percentage each partner contributes to the mortgage.

• How equity or deposits are shared (e.g., Person X contributes £100k, Person Y £50k).

• How to handle shared property if both want to remain living there post-separation.

Important: Under Scottish law, property is typically divided equally regardless of individual contributions unless a cohabitation agreement states otherwise.

Since it can be a conflict of interest for one firm to represent both partners, Lindsays often recommends trusted partner solicitors like Thorntons to act for the other party, ensuring fair advice for all.

Prenuptial & Postnuptial Agreements

• Prenups are advisable before getting married to ringfence and protect your assets.

• Postnups (agreements after marriage) are optional but growing in popularity in Scotland.

These agreements help clarify asset division in the event of separation and provide peace of mind.

Why You Need a Will

A Will allows you to:

• Decide who inherits your assets.

• Appoint executors to manage your estate.

• Avoid court disputes and ensure your wishes are legally respected.

If you’re married, some protections exist automatically. However, if you’re unmarried or in a cohabiting relationship and haven’t made a provision, your partner might have no inheritance rights without a Will. This can trigger lengthy and costly court proceedings under Section 29 of the Succession (Scotland) Act which are not guaranteed to result in any financial provision for the survivor

Tip: Consider drafting a Will when you buy your first property, a major milestone in life. Consider revisiting it as you get married, have children, or receive an inheritance to keep it up to date.

Powers of Attorney (POA)

A Power of Attorney is a crucial document allowing trusted individuals to make decisions on your behalf if you lose mental capacity. There are two types:

• Continuing POA: Manage your financial matters.

• Welfare POA: Make decisions about your personal welfare.

This protects your interests and prevents expensive court interventions. Always get these documents prepared by a solicitor to ensure they’re legally sound.

Ask the Expert – Drop-in Sessions at The Property Lounge

The ESPC team of property and legal specialists are available from Monday to Saturday. Whether you need advice on mortgages, cohabitation agreements, wills, or more, their experts are ready to help.

Common Questions Answered

Q: What if both partners own properties and want to buy a third jointly?

A: This can be detailed in your cohabitation agreement addressing unequal contributions or rental income from existing properties.

Q: What kind of solicitor should I see for a will?

A: A Private Client Solicitor specialising in wills and succession planning.

Q: When should I consider a cohabitation agreement?

A: At any stage of the buying process - before, during, or after - but earlier is better to avoid periods without protection.

Q: How does a cohabitation agreement end?

A: Usually, it covers separation scenarios, but if circumstances change (like unexpected property proceeds) a separation agreement may also be needed.

Q: What happens if I pay the mortgage but my partner rents from me?

A: Your cohabitation agreement can outline how this financial arrangement is managed and what happens on separation.

Additional Insights

• A Minute of Agreement can be used when buying with siblings or friends to protect everyone’s investment.

• Married couples have broader statutory rights on separation, but cohabitation agreements remain valuable even if you marry later.

• Ownership of assets can transform over time (e.g. buying expensive art during marriage), underscoring the importance of clear agreements.

Ready to start your journey? Contact ESPC today to discover the right property and get informed legal advice to protect what matters most.

Please also refer back to our previous ESPC post for more information here.