Debunking the myths of common law marriage

Many people believe that living with a partner for several years entitles them to the same rights as marriage. Here Private Client Solicitors Jade Hartley and Hannah Callan from Hayden Solicitors in Rossendale, Lancashire, one of the law firms involved in Will Aid, debunk the myth of the common law wife and reveal how you can protect those you love and those you live with.


Picture this. A man and a woman have been living together for 10 years. They have two young children. They both work and they both contribute 50/50 to the household bills but the house is in the man’s name. Then the man dies. Who inherits?

The vast majority of Britons believe it would be his girlfriend. The mother of his children. The woman he has shared his life with.

But actually, unless he had a will, his estate – including his house – would be passed on to his children.


What about common law marriage?

Three years ago a survey showed that 58% of the general public thought there was some form of common-law marriage that gave cohabitees rights similar to those enjoyed by husbands and wives.

These are worrying findings a time when an increasing number of couples are choosing not to marry; the 2011 census recorded that over 10% of adults were cohabiting, and many are therefore doing so without realising the full implications of their situation.

You see, common-law marriage hasn't existed in England and Wales since 1753.

No one acquires rights over someone else's property simply by living with them.

A cohabitee's rights are much more limited if the shared property is in the other partner's sole name and there is nothing in writing to prove the non-owner's entitlement to a share.

The only option is to mount expensive court proceedings with a far from certain outcome, relying on principles of 19th-century trust and property law.


Protect yourself

There are a number of issues to consider when you are cohabiting in England and Wales:

1.      Children

A father who is married to the child’s mother at the date of birth will automatically have parental responsibility over the child.

However, if the father did not marry the mother and the child was born before 1st December 2003 or he is not on the birth certificate, then he will not automatically have a parental responsibility. To obtain it, he will either need to enter into a formal agreement with the mother or obtain a court order giving him permission.

2.      Separation

Perhaps the biggest misconception is that living together will give rise to the same rights on separation as they would on divorce. This is not the case. Marriage gives a couple the potential to make a claim against all of each other’s assets. There are no such rights for unmarried couples and they can only obtain a share of their partner’s property if there is a written legal agreement.

Similarly, while a spouse could obtain ongoing maintenance from their husband or wife, if they are not married, then there is only the ability to make a claim for maintenance to support any children they have together.

3.      Taxes

Marital status can affect whether you have to pay any tax. Transfers of assets between a husband and wife (or civil partners) will be exempt from capital gains tax, but this does not apply if the couple are not married. Similarly, exemptions for inheritance tax that are given to married couples are not available.

4.      Death

If one of an unmarried couple dies without leaving a will, then the other will not automatically inherit their estate. If they had been married or are in civil partnership they will inherit all or most of the estate.


What about Scotland?

Since 2006 those who cohabit in Scotland have certain protections.

The Scottish Parliament took the step to update Scottish law to reflect the way families choose to live. The 2006 Act provides a set of basic rights for cohabitants in Scotland whose relationship ends covering: 

•        the sharing of household goods, bought during the time the couple lived together. This means that if you cannot agree about who owns any household goods, the law will assume that you both own it jointly and must share it or share what it is worth; 

•        an equal share in money derived from an allowance made by one or other of the couple for household expenses and/or any property bought out of that money. It is important to understand that this does not apply to the house that the couple live in; 

•        financial provision when, as a result of the decisions the couple made together during the relationship, one partner has been financially disadvantaged. This means, for example, if the couple decided that one partner would give up a career to look after their children, they can ask the court to look at the effect that decision had on that partner’s ability to earn money after the relationship has ended; 

•        an assumption that both parents will continue to share the cost of childcare if they had children together; and

•        a right to apply to the court for an award from the estate (property) if their partner dies without leaving a will. Before this, if a cohabiting partner died without leaving a will the surviving partner was not entitled to anything from the deceased partner’s estate.


Protect yourself

Despite calls from lawyers, judges and campaigning groups for the introduction of laws to protect those who are not married in the whole of the UK, there are no plans by the Government to do so any time soon.

This means the onus rests squarely on the shoulders of cohabiting couples to protect themselves.

If you are cohabiting and want to protect yourself from problems arising further down the line you could consider entering into a contract with your partner to decide how money and property should be divided if you separate.

These are known as cohabitation contracts or agreements and can be drafted by a solicitor.

All cohabiting couples – especially those with property, other shared assets or children – should also draw up a will.


Make a will

November provides the perfect opportunity to protect the people you love the most.

Its Will Aid Month - a will-writing drive which helps you access the best advice from solicitors across the country.

Law firms agree to pledge a portion of their time to write basic wills in exchange for a donation for charity.

The scheme supports nine of the UK’s best-loved charities and has raised more than £17 million since it launched more than 25 years ago.


Make your appointment now.

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