Few misconceptions about the law have caused as much heartache as the myth of common law marriage.
There are more than three million cohabiting couples in the UK and according to recent research, more than half of them believe they have the same legal rights as married couples.
This is untrue. This may not seem to matter in the first flush of a relationship when everything is going well, but it becomes crucially important if things start to go wrong.
Thousands of cohabitants then discover too late that they have few legal rights and face numerous pitfalls, which can lead to enormous stress and heartache.
1. You could lose your home
If your home is in your partner’s name, you will have no automatic right to stay there if you are asked to leave. You may have to rely on the complexities of property and trust laws to assert your rights. If you have children, you may have to make an application under the Children Act for the right to remain in the house until the youngest child is 18.
2. You could lose your money
You will not be automatically entitled to a financial share in the house, even if you helped to pay for it over several years or provided some of the deposit when taking out the mortgage. You may have to go to court to get what you consider to be your fair share. This will almost certainly require that you provide proof of your financial contributions to the relationship, but even then, there is no guarantee that you will succeed.
3. No financial maintenance
Your former partner will almost certainly have to make a financial contribution to help provide for your children but won’t necessarily have to pay maintenance for you, even if you gave up your job to look after the children while he or she went out to build a lucrative career.
4. Dads and parental responsibility
Unmarried fathers don’t automatically have parental responsibility for their children unless they have taken the necessary formal steps. This usually means ensuring their name is on the child’s birth certificate. Without parental responsibility, a father’s say over his children’s welfare will be greatly reduced.
A father without parental responsibility can acquire it with the agreement of the mother, but if she refuses to co-operate, he may have to argue his case in court.
5. You may not inherit if your partner dies
As a cohabitant you have no automatic right of inheritance when your partner dies unless you are included in their Will. If your partner dies intestate, without having made a Will, their estate is divided in a way laid down by law. This could mean it passes to children from a previous relationship, or even to other family members. You may have to go to court to claim a share under the Inheritance (Provision for Family and Dependents) Act, but even then, you may not be successful.
6. No share of your partner’s pension
Pensions can be complex for all couples whether married or not. However, cohabitants are in a particularly vulnerable position. Many company pensions will pay out to spouses in the event of death but not to cohabitants. In addition, you should be aware that if you separate from your partner, you will have no right to claim a share of their pension no matter how long you may have lived together.
What can you do?
The Law Commission together with several leading lawyers and judges have called for the law to be changed to provide greater legal protection for the millions of couples who choose to cohabit rather than get married.
So far, however, the Government has been reluctant make any changes and shelved proposals put forward by the Law Commission a few years ago.
Given the Government’s reluctance to legislate, many couples protect themselves by drawing up cohabitation agreements, or living together agreements, which state in advance what should happen if their relationship ends and they separate.
These agreements can include financial arrangements, home ownership and perhaps most important of all, the welfare of their children.
Some people may feel reluctant at first to be making such legal arrangements as it seems that they don’t fully trust each other. However, such concerns soon disappear, and most couples end up feeling their relationship is stronger because both partners feel more secure.
Please contact our expert legal team on 0208 004 0065, by email at firstname.lastname@example.org or using the form below if you would like more information or advice about the issues raised in this article, or any aspect of family law.
The contents of this article is general information only. The information in this article is not legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should obtain independent expert advice from qualified solicitors such as those within our firm.