Common law marriage

Understanding the myth of common law marriage

Contrary to popular belief, there is no such thing as a ‘common law marriage’. In England and Wales only people who are married, whether of the same sex or not, or those in civil partnerships can rely on the laws about dividing up finances when they divorce or dissolve their marriage.

The assumption by many unmarried couples in a long standing relationship that they have acquired rights similar to those of married couples is wrong. This common misconception needs to be addressed particularly as for many years official statistics show numbers of marriages in decline as more people choose to cohabit (living together without being married).

Many people also believe that by having a child together they acquire legal rights, whether married, in a civil partnership, or not. This is also not true. Although there is scope to apply to court for financial provision when there are children, such orders are made for the benefit of the child and only couples who are married or in a civil partnership acquire legal rights and responsibilities in relation to each other. 

common law

Your rights if you split up

For couples who are not married or in a civil partnership, if you split up your partner would not (except in certain types of cases) have to pay you maintenance even if you stayed at home to look after your children – but they would still have to pay child maintenance.

For couples who rented together, if you were not named on the rental agreement you will have no automatic right to stay if they walk out or ask you to leave and you would be left to apply to court for an order giving the right to occupy, the outcome of which is uncertain. If your ex partner owned your home, and there is no other agreement in place, you have no right to stay if they ask you to leave.

Similarly, if you are not married or in a civil partnership, any savings or possessions your ex acquired out of their own money will not be shared with you although lump sum orders can be made in certain circumstances in proceedings where there are children. 

To protect yourself if anything happens, you could consider entering into a contract with your partner to decide how money and property should be divided if you separate. These are known as "Cohabitation Contracts" or "agreements" and can be drafted by a solicitor. Read more about cohabitation agreements

If your partner dies

If your partner dies and you were not married or in a civil partnership, and they haven’t made a will, you have no automatic entitlement to inherit anything from them, including your family home, even if it's in their name or if you own it jointly as 'tenants in common'. You would be left to make an application to court for provision from the estate as a dependent, these applications are uncertain and costly.

You are also not entitled to any state bereavement benefit or a state pension based on a percentage of your ex’s national insurance contributions, even if you stayed at home to care for children and depended on your partner’s income.

Rights for cohabiting couples in Scotland

The issue of unmarried couples misunderstanding their rights has already created a divide in the UK as since 2006 those who cohabit in Scotland have certain protections. The Scottish Parliament took the step to update Scottish law to reflect the way families choose to live and to ensure that any rights that already existed for cohabiting couples but were restricted to opposite sex couples only should be extended to include same sex couples.  The 2006 Act also provides a set of basic rights for cohabitants in Scotland whose relationship ends covering: 

  • the sharing of household goods, bought during the time the couple lived together. This means that if you cannot agree about who owns any household goods, the law will assume that you both own it jointly and must share it or share what it is worth; 
  • an equal share in money derived from an allowance made by one or other of the couple for household expenses and/or any property bought out of that money. It is important to understand that this does not apply to the house that the couple live in; 
  • financial provision when, as a result of the decisions the couple made together during the relationship, one partner has been financially disadvantaged. This means, for example, if the couple decided that one partner would give up a career to look after their children, they can ask the court to look at the effect that decision had on that partner’s ability to earn money after the relationship has ended; 
  • an assumption that both parents will continue to share the cost of childcare if they had children together; and 
  • a right to apply to the court for an award from the estate (property) if their partner dies without leaving a will. Before this, if a cohabiting partner died without leaving a will the surviving partner was not entitled to anything from the deceased partner’s estate. Sometimes this meant that they had to move out of the house they had lived in together. The surviving partner will now be able to ask the court to consider giving them something from the estate. If the deceased partner was still married at the time of death, the spouse will still be legally entitled to a share of the estate.

 

This article was contributed to by Richard Busby, Family solicitor and Partner, Fisher Meredith.


 

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