The family law solicitors at Evolve Family Law are regularly consulted about common law marriage rights by unmarried partners and former cohabitees. In this article, we look at the myth of common-law marriage.
What is common law marriage?
Common law marriage is a myth. In English law, common law marriage is not a legally recognised concept. You do not get rights as a cohabitee because you are in a common-law marriage. An unmarried relationship does not become a common law marriage because of the number of years you have been living together. You do not get common law marriage status whether you have been in a cohabiting relationship for 2 years or 20 years.
If you don’t get cohabitation rights through the concept of a common-law marriage, how do you get cohabitation rights? Family lawyers say there are ways to get rights but it is best to understand how you can get those rights before you decide to move in together, have children or elect not to enter into a civil partnership or get married. Unfortunately, too many unmarried couples only find out about their cohabitation rights (or lack of them) after they split up from their partner.
As an unmarried partner, your cohabitation rights can come through a variety of means, including:
- Joint property ownership – you can jointly own property either as tenants in common or joint tenants. The way you own property can have a significant impact on what happens to the property if you split up or if one of you passes away. That’s why it is best to take family law legal advice before you jointly buy a property as an unmarried couple
- Sole property ownership – you can make a claim against a property even if it is owned in the name of your partner. A claim could potentially be made under property or trust law if you can show that you have what is referred to as an equitable interest in the property
- A cohabitation agreement or deed of trust – if you reach an agreement with your partner, either at the outset of your relationship or during your relationship, you can set out your agreement and rights in a cohabitation agreement (or deed of trust if the agreement relates solely to a specific property)
If you have dependent children with your unmarried partner, you may also have the right to claim:
- Child support through the Child Maintenance Service or the family court if the Child Maintenance Service does not have jurisdiction or if the Child Maintenance Service has made a maximum assessment under their child support formula so you then have the right to apply to the family court for top-up maintenance
- Lump sum payment to meet a child’s specific needs
- Housing for the child whilst the child is dependent – this means you would no longer be able to stay in the property after the child reaches the age of 18 or 21
- School fee payments if your child is being educated privately
- Disability-related extra costs of caring for a child with a disability
The bottom line is that however long your unmarried relationship lasted for you do not have the same legal rights as a civil partner or husband or wife. For example, you won’t be able to claim:
- A share of the family business – unless you are a shareholder or a business partner or you can successfully say that ownership of all or part of the business was held in trust for you
- A share of your partner’s pension
- Spousal maintenance
- A share of investment portfolios held in your partner’s sole name unless you can argue that the investments were held in trust – something that is very hard to do
With unmarried partner disputes, the family court has to follow property and trust law to resolve the dispute over ownership. If you are married or in a civil partnership, the family court looks at a range of factors to achieve fairness. That’s why in divorce proceedings the court can exercise a lot more discretion and there is less likelihood of one partner walking away with nothing after a long relationship. For engaged or married couples who do not like the sound of the family court having such a degree of flexibility in divorce financial settlement proceedings, there is the option of a prenuptial agreement or postnuptial agreement to record how family assets should split if you separate.
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Cohabitation rights and estate planning
If an unmarried partner dies without making a will (intestate) the surviving cohabitant has no automatic right to their partner’s estate. They could claim but this involves court proceedings against the deceased’s relatives who have inherited the estate under the intestacy rules. In a relationship without children, this could involve bringing a claim against the estate arguing that your partner’s parents should not inherit under the intestacy rules because your partner had not made reasonable financial provisions for you as their unmarried partner. This is why it is vital that if you are in an unmarried relationship, you and your partner make a Will and estate plan.
Protection for you as a cohabitee
Family lawyers understand that financial hardship on the breakdown of a cohabiting relationship is a realistic possibility in many cases because of decisions made by the couple during the relationship about property ownership. If a married couple make the same property ownership decisions during their relationship the family court has the discretion and power to make orders that it thinks are fair to both husband and wife or both civil partners. In a non-married relationship, a family judge just doesn’t have the same degree of flexibility as the court has to divide the assets of an unmarried couple based on property and trust law rather than housing or other needs.
The best option for cohabitants who are concerned about property issues and protection if they split up from their unmarried partner is to enter into a cohabitation agreement or living together agreement. This document is a form of contract setting out a couple’s decisions about what will happen to their property on separation. It works in a similar way to a prenuptial agreement and if drafted properly by a specialist family lawyer will be upheld by a court. The cohabitation agreement should be accompanied by both cohabitees signing Wills and Lasting Powers of Attorney so their estate and future proof planning recognises the importance of their loved ones.