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The Common Law Marriage Myth
06
December

The Common Law Marriage Myth

By: Abigail Whelan

Tags: Cohabitation, Family Law, Separation

Many people belive that if you have been living together for long enough, you start to have rights as if you were married. We took a look at some of the more common questions asked about this situation. 

“I’ve been living with my partner for many years. Does that make them my common law spouse?”

The short answer is no. There is no such thing as a common law marriage.

If you live with your partner and you are not married, then you are known in law as “cohabitants”.  The legal framework that applies to unmarried couples is very different, than that which applies to married couples.  

“What happens if we split up?”

Firstly, this is a complex question and will depend on the facts of each individual case, whether you are married or not.

When a couple are married or in a Civil Partnership and the relationship breaks down, the court has a large discretion to decide what should happen to the assets owned by the couple, including any which are held in the sole name of one partner. When a cohabiting couple separate, the court does not have this discretion. How the assets should be divided, will usually be decided in accordance with how they are owned.

So, say you live with your partner. You are not married and the house you are living in is owned in their sole name. The starting point is that the house is theirs. You do not have an automatic right to remain living in the property and you do not automatically obtain ownership rights over that property, just because you have been in a relationship with that person for a long time, even if you have helped to pay the bills.

The law in this area is complex - in some cases, a cohabitant who has made financial contributions may be able to claim a share of the property based on their contributions, but it is not guaranteed. A court will look at all of the evidence in trying to decide how a property is owned, such as, whether there was a common intention that the property should be jointly owned, despite the fact that the property is registered in one person’s sole name. This, of course, can be very difficult prove. You can strengthen your position by having a written agreement between you and your partner, explicitly stating how a property is intended to be owned, as this may help to provide some certainty. It is best to get legal advice about how to ensure that the agreement can be enforced.

The situation is different when a married couple, or civil partners split up. If they have a property that is registered in one parties sole name, when they separate, the court will look at all of the circumstances to decide what kind of settlement is fair to both of the parties, taking into account the interests of any minor children of the family. The court will take into account all the contributions made by both spouses, including non-financial ones such as caring for children, and can change the ownership of the property, or require the property to be sold, if that would be fair in that particular situation.

“My partner was always the bigger earner when we were together. Does he have to pay me anything for my maintenance?”

No. Even if you have been in a relationship for many years, with your partner supporting you throughout that relationship, if you are not married, then your partner is not under any obligation to support you financially when you separate. If you have children together, then you do both have responsibilities towards the children, so if the children live with you, your former partner will have to pay child support.

Another difference between married and unmarried couples is that, when a married couple have a child, the father is automatically assumed to have parental responsibility, even if he is not registered on the birth certificate. The same rule does not apply to un-married couples, where the father has to be named on the birth certificate to have parental responsibility, or acquire it by other means (such as an application to the court).

Having parental responsibility means that you are able to make major decisions about your child, such as where they go to school.

“My partner and I are not married. Neither of us has made a will, what will happen if one of us dies?”

If you have not made a will and are not married, your partner will not inherit under the intestacy rules, as they would if you were married.

If you are currently in a relationship and are not married, you will need to make a will if you want to ensure that your partner inherits from your estate when you die.

Married couples will also qualify for certain inheritance tax benefits that do not apply to unmarried couples. In addition, there are differences in the way that married couples can make claims on their partners Estate following death, for example, under the Inheritance (Provision for Family and Dependants) Act 1975.

“What can I do to protect myself, if I don’t want to get married or enter into a civil partnership?”

There are various things you and your partner can do to – these range from making sure that major assets such as a house are in joint names (and, if appropriate, having a declaration of trust to set out what shares you each have in any property); considering having a cohabitation agreement drawn up to set out what you have agreed should happen financially if the relationship breaks down, and  making sure that you have up to date wills in place to protect each other if one of you were to die.

If you are unsure as to where you stand in your relationship or in relation to any property that you own, or if you would like advice about a cohabitation agreement, please get in touch with our family department for an initial free ½ hour consultation.

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