An increasing number of people choose to cohabit rather than marry. Worryingly a number of these people mistakenly believe that ‘common law marriages’ do exist. The Common Law Myth is something we get asked about all the time.
According to Resolution, nearly half of couples who live together for a certain period of time or have children together, believe that they have the same protection as married couples if they separate or if one of them dies. But this is not the case.
There is no such thing as a common law marriage
Important Points To Note
In fact, if cohabitants separate and don’t have any legal agreements in place (such as a cohabitation agreement, deed of trust, etc), they have very few legal rights. For example, as an unmarried couple:
- The Court does not have the power to redistribute property and finances in the same way it can for divorcing couples.
- You don’t have an automatic right to an interest in any property owned by your partner (even if you made contributions to renovation). The property belongs to the person in whose name(s) it is registered. To claim an interest in the property, you would need to provide certain evidence. It can be difficult, costly and time consuming to show an interest. This is a complicated area of the law.
- If you jointly own a property with your partner, there is a presumption that the property is held in equal shares. Unless there is a clear agreement to the contrary (even if you have made unequal contributions).
- If your name isn’t on the deeds, you do not have an automatic right to stay in your home. Even if you put money into the property, or pay towards the bills.
- There is no legal duty to provide ongoing financial support. Therefore, you cannot claim maintenance (other than child maintenance) from your former partner if you separate. Even if you have lived together for many years and have given up work to raise the children.
- You cannot seek a share of your former partner’s pension. Such as Pension Sharing Order, which can be achieved in divorce proceedings.
- If your partner dies without leaving a will and you do not have jointly owned property, the surviving partner will not automatically inherit.
The laws around this
The law that governs separating couples is the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA 1996). This area of law is complicated and there are things you need to be aware of to avoid problems if your relationship breaks down.
Family Lawyers have been campaigning for a change to the law for cohabiting couples for a number years. To provide them with greater rights and protection. However, so far the law remains unchanged.
It can be a difficult conversation to have when you are about to move into a property together. However, it is important to make sure you are protected in the event things don’t work out and you separate. There are ways to ensure you and your partner are both protected.
If you wish to speak to one of our specialist family lawyers to discuss what you can do to protect yourself in the event of separation; or if you have separated and would like to obtain advice regarding your circumstances, please contact our family law team to arrange an appointment.
In view of the fact all of our circumstances are different, it is always important to seek advice from an experienced family law specialist. To discuss your circumstances and consider the different options available to you.
At Hart Reade, all of our family law solicitors are members of Resolution, which means we are committed to resolving matters by agreement and in a non-confrontational manner.
We can provide you with a wealth of information, advice and support to assist you during what can be a difficult time. If you wish to speak to any of the family law team, please call us on 01323 727321, or alternatively please complete the contact form below.
Please note that this article does not constitute legal advice and only provides a brief overview of certain issues. You should always speak to a legal professional to discuss your circumstances and consider your options.