So You Think You’ve Got a Common Law Marriage and Your Rights Are the Same as a Married Couple?

Here are 10 things you need to know…

1.There is no such thing as a “common law marriage”. Even where couples have lived together for a number of years, shared finances and even had children together, “common law marriage” is not recognised by the courts in England and Wales.

2. Parties who have separated after having lived together for several years are not entitled to claim any financial support against each other

3. When a married couple divorces the courts have powers to make a wide range of orders in relation to property, finance and children that enable partners to have closure and move on with their lives. The same rules do not apply for cohabiting “common law” couples.

4. In relation to children, there is little distinction between married and un-married couples; the court is able to intervene where agreement cannot be reached about child care arrangements and parents can seek help from the Child Maintenance Service if child maintenance cannot be agreed.

5. The main difference between married and un-married couples who have children is parental responsibility, which enables parents to make decisions about school, travel, medical issues and more. Where a father is not married to the mother and is not registered on the child’s birth certificate, he does not have parental responsibility automatically. Instead, to secure parental responsibility the parents must enter into a parental responsibility agreement or apply to the court for an order.

6. For many un-married co-habiting couples the main area of difficulty arises in relation to the division of property – in particular, the family home. It must first be established if the property is held solely or in joint names.

7. Depending on how the property is owned, there may be an express agreement setting out the shares the parties own. If there is no express agreement and/or the shares cannot be agreed, a claim may have to be issued in the civil court commonly called a ‘TOLATA claim’.

8. In reaching a decision the courts will look at the whole course of dealings in relation to the property and will consider any promises made by the parties or whether there was a common intention. Ultimately, the court decides.

9. The court can consider the financial contributions of both parties when the property was purchased or at a later date, the purpose of the property, any minor children living in the property, the nature of the parties’ relationship, how the couple arranged and managed their finances and the individual characters of the parties. Ultimately, the court can decide which shares the parties should have. These claims are often expensive and protracted, causing a great deal of stress and tension between the parties.

10. Upon death, where there is no will, cohabitants do not automatically benefit under the intestacy rules. Neither is there any exemption from inheritance tax on assets passing to an unmarried partner and courts do not have authority to divide pensions for cohabitants.

Cohabiting couples do not have the same security and certainty as married couples do upon separation. This means individuals may be particularly vulnerable upon the breakdown of the relationship especially in relation to the division of shared property.

There are things you can do to minimise many of the risks highlighted above and there is protection available for unmarried cohabitees. For further advice contact Stephanie Walker on 01229 580 956.

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