|The Common Law Marriage Myth|
| Lack of legal rights for Cohabitees
As more and more people have children outside of marriage, (records now show this accounts for 48% of all births), and more people are choosing for a variety of reasons to cohabit rather then marry, it is important to understand the significantly different level of legal protection given to cohabitees compared to that enjoyed by married couples. The rate of divorce is now one in two marriages and with a “long marriage” now considered to be anything over ten years and cohabiting relationships frequently breaking down sooner, it is important to know where you stand in the future. Your status has particular impact on issues relating to inheritance, property and pensions.
Whilst at the outset of a cohabiting relationship it may be very helpful to keep your finances separate, a few years down the line, finances have become blurred between you and you may have children together, the relationship breaks down and then you discover that “common law marriage” is a myth and does not exist. In the eyes of the law you are either formally and officially married or you are simply not and in that situation you have very few legal rights even if you have been together say for 15 years with 3 children.
If you are not married there is no entitlement to maintenance and no automatic right to a share in property (unless you have invested your own money in it, in which case you may have a claim) even if you have lived in it together for say 15 years. There is no right to inheritance without a will making specific provision and often no right to your partner's pension on their death. Even if there is a potential claim to an interest in property, disputes about property are expensive and time consuming while you are struggling with the breakdown of the relationship and day to day life.
The position is different if you are cohabiting and have children. However, even then provision is limited in that, at most, housing can only be sought until the children are adults and maintenance is limited to a carer's allowance for expenditure which directly relates to children. You may find yourself in difficulty as you near retirement, and your home has to be sold once the children finish school and you may not receive any or very little of the sale proceeds and you have no right to maintenance or a pension from your former partner.
There are steps you can take to protect yourself from these risks:
Get married or have a civil partnership. It doesn't have to be a huge event with all that entails, a simple trip to the registry office with a couple of witnesses will suffice but getting that marriage /civil partnership certificate opens the door to far greater protection if the relationship eventually breaks down.
Enter into a cohabitation agreement with your partner to regulate the terms of your cohabitation. A well drafted agreement can mean that areas of potential dispute on separation are reduced or eliminated. It can cover whatever you want it to; from contributions to property to arrangements for the children. The agreement can be reviewed at any time, for example, if there is a house move, upon the birth of children or circumstances change dramatically. It is important to ensure that it is kept up to date. It is also sensible to make a will to deal with what should happen to assets upon death as there is no automatic entitlement to inherit.
If there is jointly held property, cohabiting parties should also consider entering into both a cohabitation contract and also a declaration of trust. A declaration of trust may be entered into where one party is the sole legal owner and the other partner has an financial interest or, more usually, where the parties are joint legal owners. You can decide to hold the property either equally or in unequal shares if one or other of you invested more.
If you own your home in your sole name and start to cohabit then as a minimum, asking your partner to enter into a declaration of no interest may be the most appropriate course for you. This is a deed signed by both parties which can record in the event that your partner makes contributions towards house renovations or mortgage payments for example, how this might be recognised in the event of a breakdown of the relationship or the sale of the property at that stage.
If your parents/family members have made or are intending to make generous gifts or loans of money for say towards the purchase of a house or school fees for the grandchildren then you should look into protecting those investments and having them properly documented and ring-fenced.
At Helen Pidgeon Solicitors we are specialists in the law of cohabitation, divorce and all aspects of family law. Please contact us if you require further assistance to help you decide what is right for you and your family.
October 4, 2018