The most common myth about common law marriage is it exists! It did once but the concept was abolished in 1753 so it is incredible that it lives on in so many people’s mind.

A recent study carried out by The National Centre for Social Research discovered 46% of us still believe that a cohabiting couple is in a common law marriage.  More worryingly, the same number also believe this common law marriage myth provides the couple with some form of legal protection. 

They think that if you’re living together, you automatically enjoy the same rights to your finances and property as you would if you were married.

The truth couldn’t be further from the truth. 

There are several marked differences between cohabiting and being married and these include:

  • A married couple needs to go through a legal process to become single again.  A cohabiting couple does not.
  • If a married couple separates, they can obtain financial support or maintenance if there is a big difference in their respective incomes and needs.  One cohabiting partner has no legal responsibility to support the other after separating.
  • While a married couple has certain legal rights regarding inheritance and pensions should one spouse die, cohabiting couples have none of these rights.
  • A cohabiting father does not have any legal parental responsibilities unless his name is on the child’s birth certificate.  If the cohabiting father wants parental responsibility, they will either need to apply for a court order or enter into a Parental Responsibility Agreement with the child’s other parent.

However, perhaps the biggest differences between a married couple and a cohabiting couple relate to how their finances and property are divided after they separate.

How can a cohabiting couple divide their finances and other assets? 

Unfortunately as there is no legal requirement to divide finances and assets when a cohabiting couple separates, they need to rely on a legal infrastructure that was designed for married rather than cohabiting couples. This means the desired outcome is almost impossible to predict as:

  • A pension is owned by the named beneficiary, it is not a joint asset so if you’re not married, it cannot be divided.
  • Unless you can establish a legal right to a share of the former partner’s savings or the savings are held in a joint account, you cannot claim a share.

The one crack of light is if you are working in a family business and are a recognised owner of that business, you will have employment law rights and be able to make a claim for your stake in the business.

How can a cohabiting couple divide their property? 

Generally speaking, an unmarried couple can’t claim ownership of each other’s property should their relationship break down. This applies to not only the actual property but also any furniture, antiques or heirlooms.

This is obviously massively unfair.  

If you have lived together for 20 years and worked hard to set up home and invested your own time and money to keep your home running, does this mean you are any less entitled to a share even if your name isn’t on the mortgage or title deeds?

The only possible respite is if one partner owns the property, the other may be able to  claim an ‘interest’ in it on the basis they have made regular financial contributions to its mortgage or rent, upkeep and/or improvement (for example they may have paid for an extension).

This can quickly become a complicated issue for formerly cohabiting partners.  If the relationship breaks down the courts may have to become involved.  The court would need to decide just how much the contributing partner had invested.  

This process would be made easier if the couple had asked a lawyer to prepare a declaration of trust at the point the couple moved in together to clearly set out the relevant terms from the outset.

Can one partner in a cohabiting relationship claim spousal maintenance if the relationship ends? 

Legally the answer is no which we understand may be tough to hear.

There is one exception.  The Children Act 1989 states that if you have a dependent child under 18, you may be able to claim a carer’s allowance and ask to live in a house provided by your former partner.  It is important to note that even if this is granted, once the child becomes an adult you will be asked to give your home back to your former partner and your carer’s allowance will stop.

Although this blog may not have provided what you wanted to read, as with all family law issues everything will depend on your situation and your circumstances. 

If you would like to discuss your situation with one of our specialist family lawyers, please contact us today and we will arrange a meeting with the best qualified member of our family law team.

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