Resolution Awareness Week: Mythbusting Common Law Marriage

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Resolution is a group of family law professionals who are committed to promoting a constructive approach to family issues that consider the needs of the whole family.

The annual Resolution Awareness Week takes place in the last week of November, and Resolution is currently campaigning for change for more protection to be provided for unmarried couples.

Resolution is keen to raise awareness in the meantime to ensure that cohabiting couples are aware of their legal position and are aware of the protections available.

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Resolution Awareness Week Mythbusting Common Law Marriage

Is there common-law marriage in the UK? 

Common law marriage does not exist in the UK.  

Cohabitation is becoming more popular, and the number of cohabiting couples has doubled in the last 20 years.

Currently 3.3 million cohabiting couples are living in the UK (one in five families), most of which are unaware that they are in a precarious position.  

Research has found that 46% of adults mistakenly believe that couples develop 'common law' rights once they have lived together for a period of time or have children together.

This is not true, and reliance upon this misconception can place cohabiting couples at significant risk if their relationship breaks down. 

Many believe their former partner has a legal responsibility to support them financially upon separation.

Although parents will have a responsibility to financially support any children they may have, there is no equivalent responsibility for a cohabiting partner. 

Therefore, upon separation, one party may walk away from the other without any financial responsibility for their former partner, despite having lived together for many years, having children together and building a life together. 

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Is there common law marriage in the UK

Cohabitation vs Marriage

Cohabiting couples do not benefit from the same legal rights that are available to married couples.

Separation 

Upon divorce, married couples can have their property legally divided in accordance with each spouse's need, regardless of who legally owns the property. 

Where parties have been cohabiting, the legal title to the property will determine who owns the property on separation. 

In some circumstances, it is possible for a person who is not a legal property owner but has made certain types of contributions towards it to acquire a financial interest in the property.

In some cases, separated couples can make a claim against property under the Trusts of Land And Appointment Of Trustees Act 1996. 

Inheritance 

Spouses have an automatic right of inheritance when the other spouse dies, even without a Will.

A cohabiting partner, not named specifically in a will, will not be entitled to share in or make claims in relation to their deceased partner's estate. 

Tax benefits 

Married couples can benefit from tax benefits which are not available to unmarried couples.

The result could be that if a large gift is given from one unmarried couple to the other, tax may have to be paid. 

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Cohabitation vs Marriage

How can I protect myself as a cohabiting partner? 

There are ways for cohabiting couples to protect themselves. This includes entering into a cohabitation agreement and a declaration of trust where property is bought in joint names.

Cohabitation Agreement

A cohabitation agreement is an agreement made between cohabiting parties to regulate the terms of their relationship.

It is advisable to enter into a cohabitation agreement if you intend to cohabit with your partner, as the agreement can provide protection for cohabiting parties in the event of a separation. 

The agreement can outline how property will be split upon separation and can define the respective ownership of property; it can also outline how finances will be split and how the parties intend to support the children moving forward. 

The agreement is a bespoke document and will commonly deal with the following:

  1. The respective ownership of property 
  2. Who will pay for any outstanding liabilities 
  3. Bank accounts and savings, including joint savings 
  4. Contributions by each party to household bills
  5. Ownership of joint assets such as cars 
  6. How children will be financially supported 

How can I protect myself as a cohabiting partner

Declaration of trust 

It is advised that cohabiting couples jointly acquiring property should ensure both names are on the deeds to the property.

A declaration of trust should be entered into in a situation where a couple does not intend to hold the property in equal shares. 

Creating a will 

Unless specifically named in a will, a cohabiting party is not entitled to share in or make claims on their deceased partner's estate.

It is important for cohabiting couples to consider making a will if they wish for their property to pass to their partner upon their death. 

Schedule 1 of the Children Act 1989

Unmarried people who have dependent children may be able to make a claim for financial provision for the child under Schedule 1 of the Children Act 1989. This can include:

  • Financial claims for housing 
  • Lump sum orders 
  • School fees orders 
  • Child maintenance (in cases where the child maintenance service does not have jurisdiction)

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Contact Our Family Solicitors

If you wish to discuss any of the above or would like advice in relation to cohabitation agreements, please contact the Family Team on:

01619414000