By Eva Powell
There is a wide spread belief in the UK of the existence of ‘common law’ marriage, that if a couple live together long enough they become ‘common law’ husband and wife and acquire similar rights to a married couple or civil partnership. However, contrary to popular belief, there is no such thing. It is, in fact, a myth.
According to a 2013 survey, almost half of UK citizens are not aware that ‘common law’ spouse is not a recognised legal status while almost half of those aged between 18-34 thought cohabiting couples had the same legal rights as married couples.
The reality is that cohabiting couples, where people are living with their partner but are not married, have virtually no legal rights in the event of death or relationship breakdown.
In recent years there has been a sharp rise in cohabitation, with the number of people living as cohabitees more than doubling since 1996 making it the fastest growing family group in the UK. However, the law in England and Wales has failed to keep up with this changing family structure, offering little protection for cohabitees. Worryingly, the lack of awareness on this subject means that the many people choosing to live as cohabitees are doing so without knowing their legal rights.
Know your rights
One of the biggest misconceptions is that cohabitees have the same rights upon separation as divorcing married couples. This is not the case. Unmarried partners have no automatic claim on their partner’s assets unlike in a divorce; this is true no matter how long your relationship lasts. For instance, if the house in which both partners have lived is in the sole name of one partner the other has no automatic claim to that property or right to remain living there.
Unlike marriage, neither party acquires rights and responsibilities towards one another. It is, therefore possible, to have lived with someone as a couple for many years, even have children with them but for them to walk away with all their possessions, savings, pension and no responsibility for the welfare of their ex-partner. There is no entitlement to maintenance, with the exception of child maintenance, as there would be in the case of a couple divorcing. This inevitably leads to injustice and hardship in many cases.
Of course, marriage is not for everyone and is an entirely personal choice. However, it is important to be aware of your rights to ensure you make your decision from an informed position. Unfortunately, many people often do not consider the consequences of breaking up until it happens and they find themselves in a difficult position as a result. While it can seem unromantic to discuss, making plans for the future and the what-ifs is important and can often strengthen relationships.
If you are living as an unmarried couple, there are steps you can take to protect both your financial interests. For instance, putting in place a cohabitation agreement which allows you to set out who owns what and how property, personal belongings and other assets will be divided in the event of a breakup. The agreement can also include parenting arrangements. Drawing up a cohabitation agreement allows you to decide these important matters in a fair way without having to deal with the potential stress and acrimony of a relationship breakdown at the same time. Cohabitation agreements are legally enforceable provided the agreement has been properly effected, meaning both parties must have had independent legal advice on the agreement. Having such an agreement in place often avoids the need to involve the courts in the first place, with people being more likely to abide by an agreement they have come to themselves.
Furthermore, if you are buying a house as partners it is advisable to do so in joint names, ensuring that both names are on the deeds. This means both partners have equal rights and responsibilities in relation to the property. Similarly when renting a house, both names should be put on the tenancy agreement.
It is also strongly advisable to make a will. When someone dies without making a will there is a set of rules called the intestacy rules which govern who gets what. Despite recent changes to the Intestacy Rules rules, it remains that unmarried partners have no automatic right to benefit from their partner’s estate, irrespective of how long they have lived with each other or whether they have children together. It is therefore particularly important, if you are in this position, to make a will in order to ensure your estate passes in accordance with your wishes.