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‘Common Law Marriage’ – Myth or Reality?

Oct 22, 2015
The media often leads us to believe that after living with someone in a relationship akin to a marriage for a certain period (usually stated to be seven years) those cohabitants will have rights against each other upon the relationship breakdown, in the same way that married couples do on divorce.  

However, common law marriage is a myth – cohabitants have no rights against each other by virtue of their cohabitation alone.

Upon the separation of a married couple, spouses can make a claim against each other’s assets, pensions and income. This is important where one spouse is financially weaker than the other, or where one party has greater needs because they will remain the primary carer of children. 

A cohabitant cannot make such claims upon relationship breakdown.  If the property in which they live is owned by just one of the parties, it can be extremely difficult for the other to prove that they have an interest in it. Whilst spouses can often claim maintenance upon divorce, cohabitees have no such entitlement to claim maintenance for themselves, and they will be limited to claiming child maintenance, which may not be enough to meet their outgoings. 

So what should cohabitees bear in mind before moving in together? 

Cohabitation Agreement
Cohabitees should consider entering into a Cohabitation Agreement which sets out what each cohabitant will contribute to the household and how property/assets are to be owned. 

Where cohabitees intend to own a home in their sole or joint names, advice should be taken to ensure that the legal ownership of the property reflects their intentions. 
If you buy as tenants in common, you can specify the shares in which the property is owned, such as according to your contributions, and you can leave your own share by Will as you choose. 

If the property is owned as joint tenants, it will be owned in equal shares and you will each get half of the sale proceeds. If one of you dies, the other will automatically inherit the other’s share in the property. The presumption that the property is owned equally can be displaced in some circumstances if it can be proven that the cohabitees had a common intention that their shares should change. This can be risky where one cohabitant makes a greater contribution towards the property. 

Similarly, where a property is purchased in the name of one person, the other cohabitee may be able to establish an interest in the property based on their contributions.  

This makes it extremely important to ensure that advice is to taken to ensure that your interest in and contributions to a property are properly documented and protected.

Parental responsibility for children 
Where a father is married to a child’s mother at the date of birth, he will have automatic parental responsibility for the child. However, if the father is not married to the mother at the time of the child’s birth, he will only have parental responsibility if he is named on the child’s birth certificate (if the child was born after 1 December 2003), if there is a formal agreement between the mother and the father that he should do so, or the Court gives him parental responsibility. 

Make a Will
Without a Will, cohabitees will not automatically inherit on the death of the other, and the remaining cohabitee may not even be able to remain living in the home. 

For more information, please contact Karen Pritchard or another member of our Family Team on 01279 755777.

Karen Pritchard

About the author

Karen Pritchard

Karen joined Nockolds in September 2015. Before joining the firm, Karen graduated with a First Class degree in Law from the University of Westminster and ...

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