A quick online search will often reveal discussions about the rights accrued by people in a ‘common law marriage’, typically prompted when an unmarried couple’s relationship ends and they have questions about housing or financial arrangements.
What’s alarming is the confident manner in which many people inform them that they will automatically obtain common law rights after several years of living together. This is not true.
Non-married co-habiting couples are the fastest-growing family type in the UK, accounting for around 20% of families. Worryingly, it is estimated that over 60% of these couples mistakenly believe they have a ‘common law marriage’ which provides them with various rights and protections regarding finances etc.
In order to help stop the spread of misinformation, no matter how well-intentioned, we thought we’d set the matter straight regarding common law marriage.
Does Common Law Marriage exist in England and Wales?
First and foremost, we can confirm that there is no such thing as ‘common law marriage’ in England and Wales, and there never has been. It is a long-standing, legal myth. A variation of the common law marriage concept once existed in Scotland, which is governed by different laws, but even that was abolished in 2006.
If I live with my partner for 3/5/7/10+ years, I will acquire common law marriage rights?
Regardless of how long you live with someone, if you are not married, you will not acquire any legal rights or protections as you would if you were married.
If my relationship with my unmarried partner ends, I can claim a share of our home?
Unmarried partners are not automatically entitled to a share of their partner’s assets, such as the flat or house they share as a home, even if they’ve lived together for many years.
If a person has lived in a property owned by their partner, the owner will retain their control over the property, and they will have to move out if the relationship ends.
However, a person could potentially claim a beneficial interest in jointly held property if they can prove they significantly contributed to it financially (e.g., mortgage payments, money for renovations).
Can I claim financial support/ maintenance from my common law partner?
While some married couples may be entitled to spousal maintenance, unmarried couples do not have an automatic legal right to claim financial support. Generally, if a non-married couple splits up, each person retains what is in their name, and joint assets are divided based on individual contributions and how they are held by law.
If a couple have children together who are under the age of 16, or 20 if they are in full-time education up to A level standard or in approved training, then it is possible for the resident parent to make a claim for child support from the non-resident parent (at rates prescribed, assessed and if necessary, collected by the Child Maintenance Service).
When parents are not married, the parent who is the main carer of any child of the relationship, could potentially under Schedule 1 of the Children Act 1989, apply to the Court for an order for financial provision for any child(ren).
The Court can make orders for various types of financial support, including periodical payments, lump sums, and secured periodical payments, and legal advice should be sought before you proceed, as each case will turn on its own facts.
I will automatically inherit from my partner’s estate if they die?
Non-married co-habiting couples do not automatically have inheritance rights if their partner dies without a Will.
However, if the surviving person was financially dependent on their partner or had been in a relationship with them and they had lived together for at least two years, they may be able to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975. Any claims for financial provision must be made within six months, usually from the time Grant of Probate was given.
The Court will make a decision regarding any claim under the Act and will take numerous factors into consideration whilst deciding if a) a claim is valid and b) what amount of provision would be reasonable. These factors include:
- The claimant’s financial resources and needs.
- The financial resources and needs of other claimants and beneficiaries.
- The deceased’s obligations and responsibilities towards the claimant and beneficiaries.
- The size and nature of the net estate.
- Any physical or mental disability of the claimant or beneficiaries.
- The conduct of the claimant or any other person.
If there is a valid Will and the unmarried partner has been named as a beneficiary, they will be able to inherit based on the terms specified, but they will not benefit from the same inheritance tax benefits as married couples. Married couples can transfer assets tax-free between them if one of them dies, but unmarried couples must pay inheritance tax on any portion of an estate exceeding the nil rate band, which at the write of writing is £325,000. Any assets over this figure will be taxed at 40%.
If the couple bought a property together, they would usually share ownership as either joint tenants (where ownership passes to the surviving partner) or tenants-in-common, where each partner’s share can be left to someone else in a Will.
How can co-habiting non-married couples protect their finances?
Depending on what they wish to achieve, co-habiting couples can document their financial arrangements, both during their relationship and in the event that they separate.
A Declaration of Trust is a legally binding document drawn by co-habiting couples who have a joint interest in a property. It outlines how a property is owned and how the proceeds of a sale will be divided should a property need to be sold.
A couple can also draw up a living ‘Living Together’ or ‘Cohabitation Agreement’, that covers a wider range of financial and personal matters for co-habiting couples, including property, finances, day-to-day arrangements and what should happen in various eventualities, both during their relationship and if they ever separate. This document may not always be legally binding but can be useful for a Court to understand both parties’ intentions regarding financial matters and can help alleviate any future disputes or misunderstandings.
As mentioned earlier, an unmarried couple may also wish to make a Will benefiting the surviving partner if they would like to leave them property, money or possessions.
How we can help
Our Family Law, Wills, Trusts and Estates, and Residential Property teams can advise unmarried couples on any legal rights they may or may not have based on their specific circumstances.
We can clarify the legal ownership of assets and finances as well as steps you can take to protect your own interests or draft an agreement between unmarried partners to help manage assets and finances.
Contact us on office@thpsolicitors.co.uk or T: 0118 975 6622