Common Law Marriage: A Myth

Resolution, a Family Law Group, has warned that millions of unmarried couples who live together could be unaware of their rights in the event of a break up. This follows a survey which uncovered that two-thirds of cohabiting couples wrongly believe that a ‘common law marriage’ exists when dividing up finances.

This is not the case: when married couples separate, the law permits Courts to divide property and finances in a manner that is fair to both parties; but when unmarried couples separate, even if they have children together, the parties do not have the same rights.  

If you are and your partner are unmarried, and your name isn’t on a deed or a rental agreement, you do not automatically have the right to stay in your home. Even if you have put money into your home by paying bills, helping with the mortgage or deposit etc. you could be asked to leave your home and be left with nothing.  If you have children together your partner would still have obligations to support them, but not to support you. This could mean difficulties for you in supporting your family without accessing additional money.

Citizens Advice provide the following six ways in which your rights differ if you are cohabiting and not married:

  1. If one cohabiting partner died without leaving a will, the surviving partner will not automatically inherit anything, unless the couple jointly own the property. A married partner would inherit all or some of the estate.
  2. An unmarried partner who stays at home to care for children cannot make any claims in their own right for property (unless jointly owned), maintenance or pension-sharing.
  3. Cohabiting partners cannot access their partner’s bank account if they die – whereas married couples may be allowed to withdraw the balance providing the amount is ‘small’.
  4. An unmarried couple can separate without judicial intervention, but married couples must apply for a divorce to end the marriage formally.
  5. Cohabiting couples are not legally obliged to support each other financially, but married partners have a duty to support each other.
  6. If you are the unmarried partner of a tenant, you have no rights to stay in the accommodation if you are asked to leave, but each married partner has the right to live in the ‘matrimonial home’.

Unmarried couples can take steps to protect themselves: a cohabitation agreement can be drawn up which sets out your joint intentions for things like finances, property and arrangements for any children if you split up; a declaration of trust can be drawn up to set out how you want to own a property and in what shares, even in the event of a split; and a will can be drawn up to ensure a partner’s rights if one partner dies.

If you find yourself in such a difficult situation in relation to a split, please do contact us to arrange a free 20-minute consultation to discuss your legal options. 

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