Did you know there is no such thing as a ‘common law marriage’? It seems a fairly widespread belief that if you live with your partner for long enough, you will somehow acquire the same rights as a married person. This is not true! There are vast differences between the rights of a married person and an unmarried person. A married person can make financial claims in the context of a divorce over the capital and income of their spouse. An unmarried person has no such claims.
They may be able to make a claim against their partner’s property in limited circumstances or they may be able to make a claim for provision for their children, if they have any. Other than this, they have no financial claims. This can lead to terrible outcomes. For example, a woman who is separating from her partner, may have stayed at home and devoted herself to bringing up the children. If the children are grown up, she will not have a claim for their provision and she may not have any claims to any of her partner’s property. She would have no claim for maintenance. She could be left with nothing other than what is in her sole name.
In England and Wales, when married couples divorce or civil partners break up, both parties have a legal claims to maintenance and their share of assets, including property. The Court has a wide discretion to take all the circumstances and history of the relationship into account and decide on a fair division. Cohabiting couples have no such rights to any financial support if the relationship breaks down, regardless of the number of years they have been together and whether they have children. One parent may be entitled to claim child maintenance which is calculated by the Child Maintenance Service using a standard formula based on the ex-partner’s income.
If the couple do not have a Declaration of trust for any property they might co -own, should a dispute arise they may find themselves having to navigate their way through complex laws of trusts to work out how much of a share in the property they might be entitled to. Not only is this problematic, it will require expert, legal advice to resolve. The interpretation of the law on trusts is frequently changing on a case by case basis.
To avoid such issues it is a good idea for any couple who are thinking of moving in together to enter into a “Living Together” Agreement. This can record at the outset what might happen in the unfortunate event their relationship breakdown and prevent any problems arising. It can cover how you will support your children, over and above any legal requirements to maintain them, as well as how you would deal with bank accounts, debts and significant joint purchases. Whilst it is not the most romantic way to take the next step in your relationship, knowing all the practicalities have been addressed gives peace of mind and security.
If you would like further information in relation to living together agreements or family law generally, please contact one of our family solicitors at Debenhams Ottaway.
The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.
