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Does Common Law Marriage Exist?

Many people are under the impression that couples that are not married but that live together, also known as cohabiting couples, form a common law marriage.

 

In fact, a recent survey shows that 46% of the British public believe this to be true. However, in reality this is not the case and there is actually no such thing as a common law marriage. This may leave you wondering what your rights are as a cohabiting couple.

Married couples have the advantage of being able to claim benefits such as:

  • Claim spousal maintenance on divorce
  • Make claims against each other’s pensions on divorce
  • Make use of exemptions from Capital Gains Tax
  • Establish the right to live in the matrimonial home
  • Claim their spouses transferable nil rate band for inheritance tax if they die before you

Cohabiting couple have no such rights. So, what can be done to acquire more rights?

Firstly, there is the option to get married. Marriage is now legal in the UK for all couples over the age of 16. However, we appreciate that not everyone wants the legal status of being married and so it may be more beneficial to enter into a cohabitation agreement instead.

A cohabitation agreement can set out the arrangements that will apply while the couple are living together as well as the arrangements for if the relationship breaks down. It is advisable to enter into such an agreement before you start living together rather than after. The agreement must be freely entered into by both parties, preferably after taking independent legal advice.

Other factors to consider:

Children:

Contrary to what many people believe, if a couple are not married at the time of a child’s birth and the father’s name is not put on the child’s birth certificate, the father of the child will not automatically have parental responsibility of that child. This limits the father’s rights over the child but does not prevent him from applying for a child arrangements order to establish with whom the child shall like (formerly known as custody) and what time the children shall spend with each parent (formerly known as access or contact).

Relationship breakdown:

If you are unmarried but are going through the unfortunate breakdown of a cohabiting relationship, you may be starting to think about what will happen to your property and what you can claim for. Firstly, neither of you will be able to claim maintenance from the other. If you have children together however, you can claim maintenance for those children.

If you own a property together, you will need to consider whose name the legal estate is in and whether the property is owned as joint tenants or tenants in common. The difference between the two is that when a joint tenant dies, the legal estate will automatically be passed to the surviving owner. However, when a tenant in common dies, their share of the property will pass under their will or in accordance with the intestacy rules.

If the property was purchased as joint tenants, either person could apply to the court for an order that the property be sold, and the proceeds be divided. If the property was purchased as tenants in common, then only a declaration of trust made by the parties will be decisive and will avoid uncertainty. If there is no declaration of trust, there is a presumption that they own the property in equal shares unless it can be proved otherwise. The court will look at many factors when deciding upon the size of each party’s share such as what the party’s intentions were when they purchased the property.

If the property is in one party’s name only, there is a presumption that they also own the entire property. If the non-owning party wishes to make a claim, they will have to establish a claim by showing that they have either made a direct contribution to the property, or that there was a common intention to share ownership and that the non-owning party relied on this intention to their disadvantage.

If you are worried about your rights as a cohabitee, feel free to get in touch for more information. At Watson Thomas Solicitors we offer a free initial consultation for all new clients, please contact us to discuss any queries you may have regarding protecting your assets upon divorce or separation and we would be more than happy to help.

For further information please visit www.watson-thomas.co.uk or call 01252 622422 to speak to a member of the legal team.