Frequently Asked Questions
I am not married to my partner, but we have lived together for a long time; does that make me a common law spouse?
Despite popular belief the concept of common law marriage is a myth and has not existed in England and Wales since 1753! Accordingly, whether you have lived together for 7 years or 70 years, at present cohabiting couples have no legal obligations towards each other and in general the law treats unmarried couples who separate as two unrelated individuals.
What rights do I have if we are not married?
Apart from sharing your life together, couples who cohabit have significantly fewer rights and responsibilities than people who are married or who have formed a civil partnership. Cohabiting couples may however create legal obligations towards one another in other ways (such as by entering into a Cohabitation Agreement, making wills in each other’s favour, or by owning a house together), but they never automatically become financially responsible for each other in the way that married people do.
So, what happens if our relationship ends?
• In simple terms each party takes out of the relationship the property which they have brought into the relationship. Money or assets acquired during the relationship belong to the person directly responsible for acquiring the money or assets, and are only shared if there is a clear agreement or understanding to do so.
• If you rent your home and the tenancy is in your ex-partner’s name only, you will have no automatic right to stay in the property if your ex-partner asks you to leave or walks out.
• As you are not married, cohabitants cannot claim maintenance from an ex-partner even if you have given up work to look after children or your home.
• If your ex-partner owns the home you live in and there is no other agreement or understanding in place, you may not have any automatic right to stay in the property if your ex-partner asks you to leave.
• If you are a father to a child and you haven’t jointly registered yourself with the mother as the child’s father on the birth certificate since 1 December 2003, you will not automatically have Parental Responsibility in respect of your child. Until you acquire Parental Responsibility you will not have any legal rights in respect of your child, and only the mother will be able to make day to day decisions concerning the child.
What happens if my partner dies and we are not married?
• If your partner dies and they haven’t made a will you won’t automatically inherit anything from them if a property is in their name, or if you own the property as Tenants in Common.
• You will not get any state bereavement benefit or a state pension based on a percentage of your partner’s national insurance contributions.
• If two people have lived together in the same household as “husband and wife”, or as civil partners, for a period of 2 years immediately preceding the death of one of them, the surviving partner may apply for reasonable financial provision from the estate of the deceased partner.
So what can we do if we do not want to get married, but want to protect ourselves?
• If you are renting a new place together, think about putting both names on the tenancy agreement.
• If you are buying a new house together, or moving into a home your partner already owns, think carefully about how you own it. Choosing between owning it in one person’s name, as Joint Tenants or as Tenants in Common will make a massive difference to your rights. Legal advice should be taken to explore the best option for you.
• Make a will even if you haven’t got very much to leave at the moment. Without a will all your property and assets will automatically pass to your closest blood relations – which may not be what you want.
• If you are an unmarried father, make sure you get Parental Responsibility for your children. This can be done by a formal agreement between yourself and your partner.
• Check your pension scheme as some schemes don’t pay survivor’s benefits to unmarried partners. The best protection is for cohabitants to name each other as the person to benefit from any relevant pension scheme. Also think about how you can build up separate pensions for each of you.
• Enter into a Cohabitation Agreement so you can agree how you will share your assets if your relationship breaks down.
Is a Cohabitation Agreement legally binding?
Cohabitation Agreements are likely to be enforceable provided that they deal with financial arrangements only and meet the usual contractual requirements.
What can be included in a Cohabitation Agreement?
A Cohabitation Agreement could include provision for maintenance following separation, as well as dealing with division of the assets at the time of separation.
How much does a Cohabitation Agreement cost?
The cost of a Cohabitation Agreement depends very much on the simplicity or the complexity of the agreement reached between the parties and the assets involved. On average a standard Cohabitation Agreement involving one property and usual assets will be in the region of £750.00 to £1000 + VAT.
The future for cohabitating couples?
The future of cohabiting couples is unclear. The implications of a 2011 Supreme Court case of Mrs Kernott and Mr Jones drew many column inches in the Press. In that case, the male partner went away with just 10% of the jointly owned property. The case has now set a precedent that an equal division is not always fair if it does not reflect the contributions that the parties had made to the property and the Court can alter this. Accordingly, Cohabitation Agreements are more relevant than ever as it gives cohabiting couples the opportunity to express how they intend to deal with day to day bills and contributions, which can be very helpful in establishing intentions in the event that a separation takes place.