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Common law marriage – Really?

In 2017 there were 3.3 million cohabiting couples who were neither married or in civil partnerships. This for the last 20 years has been the fastest growing group of couples. A significant proportion of this group are in single ownership or tenanted properties. This is a concern when considering the limited rights that cohabiting couples have versus married couples.

A recent survey showed that two thirds of the respondents incorrectly believed that “common-law marriage” still existed, and surprisingly that cohabitants had the same rights as married couples. Unlike marriage, it is possible for a couple to have a long standing relationship, children (who have grown up) and for someone to have no financial responsibility for a former partner if the relationship breaks down.

Recent cases have also highlighted the difficulties that face unmarried couples in the event that their partner dies. Accessing bank accounts, obtaining benefits which would normally accrue to a spouse and a number of other benefits which would naturally accrue to the surviving spouse of a marriage, can be denied to be the unmarried survivor.

The misconception of a “common-law marriage” can lead to couples not realising the following:

  1. Unless a property is owned jointly, in the absence of a Will, the surviving partner will not automatically inherit, if at all.
  2. There are no maintenance, property and pension rights to a partner who stays at home and looks after the children in their own right, unlike the case with married couples.
  3. Unmarried couples can’t access their partner’s bank accounts in the event of death.
  4. Unmarried couples are not obliged to support each other.
  5. Unless you jointly own a property with your partner, the only way of establishing an interest in that property is to go through costly and complex litigation.

These are just a few examples in the differences between unmarried couples and married couples in law.

One way to avoid future difficulties maybe to consider a cohabitation agreement. Where property is involved, co-own the property but ensure that the shares are defined either by way of a Declaration of Trust or on the transfer itself. Agreements regulating relationships are increasingly becoming common in marriage and there is no reason why such agreements should not apply to unmarried couples.

If you would like some further information on civil partnerships contact Downs Solicitors to see how we can help.

Posted on 20/12/2018 by Richard Middlehurst

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