Cohabitation and Common law marriage

A recent YouGov survey suggests that over one-third of unmarried couples living together believe there is such a thing as a  “common law marriage”. In other words they think that, despite their unmarried status, due to their cohabitation and length of relationship they have the same rights as married couples.

This idea that long-term living together offers similar rights to married couples is a ruse, a myth that is not only untrue, but dangerous.

The number of cohabiting couples is growing rapidly within the UK, with figures showing that there are now 3.3 million cohabitees accounting for near 20% of families and this trend is set to continue.

So it’s imperative that cohabitees know their rights. When a marriage ends, the assets you have accumulated over the course of the marriage are generally seen as matrimonial property and the Court are able to make orders on the division of this property.  Unlike married couples, nothing comes to the cohabitees by virtue of the relationship.

The general position is that any asset held in each party’s sole name remain with that person. This includes property and can create a perilous predicament for those cohabitees where the family home is not jointly owned.

In cases where the property is jointly owned, the presumption is that the cohabitees intended an equal split. This is irrespective of each party’s actual contributions to the purchase of the home. In the case where only one person owns the property, the onus is put on the non-owner to show that there was a common intention that they were to have an interest in the property, which can be difficult to prove.

For those cohabitees who are separating, you might get something if you establish some general property rights and if there are children there will be a provision of maintenance until they reach 18 years, but that is often it.

While campaigners, such as Resolution, have repeatedly called for cohabitees to be given increased legal protection the government has failed to act. If you are cohabiting, but not intending to get married or enter a civil partnership there are steps you and your partner can take to arrange your financial affairs sensibly.

You should both have a valid Will in place. Currently the rules of intestacy mean that cohabitees do not automatically inherit their partner’s estate if they die without leaving a Will and therefore should you want your partner to inherit your assets this must be stated in a Will. You may also consider writing a cohabitation agreement setting out exactly what assets each partner has brought to the relationship and how they should be divided in the event of the relationship ending. A declaration of trust could also be made laying out any interest each partner has in the family home.

Contact

For more details please contact our family team in Newcastle or South Shields by email to louise.law@davidgray.co.uk or 0191 232 9547.