Insights

There’s No Such Thing as a Common Law Marriage


10/12/2013

The recent political debate on the rights of cohabitants has again highlighted on-going misconceptions relating to ‘common law marriage’. This term has long been used to describe people who live together without getting married but only in a very few jurisdictions does it hold any legal weight, and certainly not in England & Wales.

Resolution (the Family Law Association) surveyed UK MPs and found that 69% of them agree there is a mistaken belief in the existence of ‘common law marriage’ amongst their constituents. A further 57% believe that the law needs to be changed to provide greater protection for unmarried couples upon separation. So, as cohabitation continues to increase, what are those misconceptions and what legal rights do cohabitants have?

First, it is wrong to assume that unmarried heterosexual or gay couples living together for a period of time acquire rights akin to those of married couples. This is simply not the case because there is no such thing as a ‘common law’ husband or wife and nor do unmarried couples have an automatic right to claim either capital or income on relationship breakdown.

Many unmarried fathers assume they have the same rights and responsibilities in relation to their children as unmarried mothers but frequently they do not.

Couples also often wrongly believe that their unmarried partner will automatically inherit their estate so there is no need to make a will.

Financial Provision on Relationship Breakdown

Unmarried couples do not have the benefit of the various orders for financial provision available to married couples under the Matrimonial Causes Act 1973, such as orders for maintenance, lump sum payments and property adjustment orders. In the event of a relationship breakdown and where there are no children from the relationship, an unmarried partner cannot make financial claims against his/her partner.

However, they may be able to make a claim in connection to any property in which the parties lived together, although a claim of the latter sort will rely upon various arcane rules of land and trust law. Making a successful claim of this kind can be extremely costly and take a considerable period of time. Where there are children, it is possible to make applications for financial provision for them under the Children Act 1989. Such orders can include lump sums, transfers of property and maintenance or periodical payments. However, in practice the latter will only be made if the Child Support Agency does not have jurisdiction or where the courts retain a residual jurisdiction.

Regardless of whether couples are married or unmarried, there is an obligation on a parent to maintain his/her child. The Child Support Agency will therefore assess the absent parent for child maintenance.

Death

If a person dies without leaving a will, his or her unmarried partner will not benefit under the rules that govern intestacy (from which married couples can benefit). So if it is intended that provision be made for a partner on the death of the other, positive steps must be made during the lifetime of both parties, such as making a will. Other positive steps can include: holding property in joint names so that on death, the survivor will automatically own the whole property; nominating the surviving partner to receive benefits payable on death under a life assurance policy or pension scheme; and making a lifetime gift of property.

Where an unmarried couple are living together but one of the partners is married to someone else and dies without leaving a will, the surviving spouse will benefit unless they were judicially separated. It is important to note that transfers of money, property etc. between married couples are generally exempt from inheritance tax but that this does not apply to unmarried couples.

Conclusion

Although the number of unmarried couples living together in the UK is reaching record levels, few couples consider entering into cohabitation agreements to record what they have agreed, to regulate their cohabitation and to provide for the financial consequences of a breakdown in the relationship. It can cover who owns the home in which you live and, if jointly, in what proportions. It can also cover who is going to pay the bills and what you agree should happen to the property if your relationship ends or upon death. If you do not have a binding cohabitation agreement, it is possible that following your separation or death, a court may alter the shares in which you intended to own your home.

If you do have a cohabitation agreement, however, there is no substitute for properly recording the shares in which any property is owned in a declaration or deed of trust, making a will or nominating benefits under a life assurance policy or pension.

Gordon Dadds