What does “common law marriage” mean and is it legally valid?

There is no such thing as a common law marriage. Unfortunately, this remains a common misconception that if you have lived together with your partner for a period of time, in some cases for several years, that you will have the same rights as a married couple. This is not the case. Cohabiting couples do not have the same financial claims when they separate as married couples do.

How do the rights of married and unmarried couples differ?

As a married couple there is legislation to protect couples when they separate and divorce. There are financial claims that they can make in respect of the assets either in joint or sole names. Married couples can also apply for maintenance for themselves from the other party.

Unmarried couples do not have any automatic claims to assets owned by the other party. Unmarried couples cannot claim maintenance for themselves from the other party. The only legislation that unmarried couples can use relates to jointly owned property or where there are children of the relationship.

What is a cohabitation agreement and what are the benefits of unmarried couples having one?

A cohabitation agreement is a formal agreement that deals with what would happen in the event of separation. This document can confirm what the couple have agreed in relation to the current setup so for example, who is paying for which bills and for how much. The agreement can also deal with setting out the assets owned by each party and how these should be dealt with if the couple were to separate.

These agreements are similar to Pre-Nuptial agreements and can be entered into either prior to the couple living together or after they have started living together. These agreements can aid couples in reaching an agreement whilst they are in a relationship as this can become very difficult when a couple separate.

How can unmarried cohabiting couples make sure their children are protected?

It is important to deal with children within a cohabitation agreement. This can include for example any maintenance and surnames.

Unmarried fathers do not automatically have parental responsibility for their child unless they are named on the birth certificate and the child was born after 1st December 2003. Married fathers will have automatic parental responsibility. Therefore, it is important to deal with this which can be done by agreement between the parties or through a Court application should the father not have parental responsibility at this time.

When unmarried couples separate they can seek to obtain maintenance in relation to the child either by agreement or through the CMS. There are also financial provisions and property orders that can be made for the benefit of a child.

How else can a solicitor advise cohabiting couples on protecting their assets and each other?

Couples should also ensure they have a Will. There is another misconception that unmarried couples will have an automatic right to each others’ estate in the event one of them dies. In order to ensure that their assets are distributed how they wish they should ensure they make or update any Will.

When buying a property together couples should consider how this property will be legally owned. You may want to hold the property in unequal shares for example, where one party has provided a larger share towards the purchase price. If a couple were to hold the property as Joint Tenants in equal shares this could mean that on separation the proceeds of sale are divided equally between the parties. This may not be the intention of the parties and Court proceedings can be expensive and may take many months or years to resolve matters. Couples may want to consider holding the property as Tenants in Common so that their respective share will pass under the terms of their Will. This may be important where there are children from a previous relationship.

Couples should consider entering into a Declaration of Trust which can clarify the beneficial interest of each party within any jointly owned property. This document can then be referred to when parties separate along with any cohabitation agreement to ensure any sale proceeds are dealt with as agreed by the parties. It is often the case that one party could lose several thousands of pounds if they do not protect their interest in a property when this is purchased and the Court have no alternative but to divide the proceeds equally.

Contact the Family team for more information