The ‘common-law marriage’ myth
The number of couples who choose to live together without getting married has greatly increased over recent years, and a common misconception is that after living together for a few years cohabiting couples acquire similar rights to married couples (this is often mistakenly referred to as ‘common-law marriage’). Legally however, common-law marriage does not exist and regardless of how long two people are together, if they are not legally married, they do not have the same legal rights as married couples.
Ways in which the rights of cohabiting couples differ from the rights of married couples
- The law treats unmarried couples as two separate individuals meaning assets such as property, bank accounts, savings and investments will remain in the ownership of whomever’s name they are in.
- If one cohabiting partner dies without leaving a will, unlike married couples, the surviving partner will not automatically inherit anything from the deceased partner’s estate (unless the couple jointly own property).
- In order to end a marriage a formal Court process must be followed and if there is a dispute, the Court can make Orders as to how the matrimonial finances should be divided, how the former matrimonial home should be dealt with, and whether spousal maintenance should be paid or a pension shared etc. For unmarried couples however, neither party is lawfully required to take responsibility for the other if the relationship breaks down, regardless of how long they may have lived together.
- Each married partner has the right to reside in the matrimonial home, however, for unmarried couples, if only one party is the legal owner of the property then only they have the right to reside there unless a claim is made to the Court.
- If children are involved, an unmarried partner is not classed legally as a step-parent in the same way that a married spouse would be.
- If there is a dispute about a property following the breakdown of an unmarried cohabiting couple’s relationship, then an application can be made to Court under the Trusts of Land and Appointment of Trustees Act 1996 (ToLATA). This is a civil action wherein a Judge will determine the parties’ interests in the property.
In order to provide certainty and reassurance as to how property is to be divided upon the breakdown of a relationship, and/ or to clarify how a couple intends to manage the finances whilst they live together, cohabiting couples can enter into a written agreement known as a Cohabitation Agreement. This is a legally binding agreement and can avoid disputes and remove the need for costly litigation.
Please do not hesitate to contact a member of our family department on 0191 384 2441 who would be happy to assist you should you require any advice with regards to cohabitation.