The common law marriage myth

posted: 30th January 2017

It is a common misconception that cohabiting couples are afforded the same rights as married couples. However, the common law marriage is a myth!

According to the Office for National Statistics the fastest growing family type is cohabiting couples with 1.5 million in 1996 compared to 3.3 million in 2016.

To account for the increasing number of people choosing to cohabit, there have been campaigns for the government to introduce legislation that provides cohabitees with legal protection.

Currently, more than 10 years since the Law Commission recommended that cohabiting couples receive protection under the law a Cohabitation Rights Bill is making its way through Parliament.

If this Bill is enacted this will provide cohabitees with basic legal rights. In the meantime the differences between a marriage and cohabitation are laid out below.

MarriageCohabitation
You need to provide notice to your local Registry Office at least 28 days before you are due to get married. Following the ceremony you will register your marriage or civil partnership.If you wish to cohabit you do not need to fulfil any legal requirements. You can cohabit at any time, age (16+) or gender.

You can enter into a cohabitation agreement with your partner, thereby formalising your rights and obligations to each other. For advice on this please contact one of our specialist family law solicitors.

If your marriage or civil partnership unfortunately comes to an end, you will get a divorce or an annulment. These processes are both carried out by the Court once the necessary paperwork has been filed.

This can be a costly process, both emotionally and financially. Here at PMC, our family law solicitors are ready to support you through this process, and guide you through the legal minefield.

You are not legally required to end your cohabitation formally. This can be a simple process agreed between you and your partner. There is no court process necessary, unless there is property involved.
One of the main assets acquired during the course of a marriage is the matrimonial home. Both you and your spouse are entitled to stay in the matrimonial home and acquire what is legally known as Home Rights. If you are not a joint owner of the matrimonial home you can protect your interest by registering your Home Right with the Land Registry.

What happens then when you end your marriage?

You can choose to enter into a voluntary agreement with your spouse and get this legally recognised by the Court or you can follow the Court process when dealing with the finances of the family. Whichever way you choose, your property will be divided between you and your spouse.  This ensures that you are not still legally tied to each other which could have financial implications in the future.

If you are cohabiting, one of the following may apply to you:

Solely owned property: if you or your partner solely own the property you live in, the other is not legally entitled to stay in the property if asked to leave and will not share in the proceeds of sale. You may however be able to demonstrate a beneficial interest in the property – this may be the case if you have contributed financially towards the purchase of the property, you may be able to apply to Court and have your contribution legally recognised.

Jointly owned property: you will both have a right to stay in the property and should have indicated upon the purchase of your property the way you intend to split the property in the unfortunate event your relationship ends and you wish to sell the property.

If you are unsure about how you hold your property with your partner, please contact us to obtain more details on your legal position.

There is a legal duty to support each other. If you are financially dependent upon your spouse, you can apply for maintenance during the divorce process. This will aid you from falling into financial hardship. The financial aspect of your case will also be dealt with during this period.If you are a cohabitee you do not incur any obligation to financially support the other.
In the event one spouse becomes ill, the other spouse is able to make decisions on their behalf.Cohabitees are not afforded the same privilege, if your partner falls ill you cannot legally make decisions on their behalf without a power of attorney providing you with such authority.
If your spouse dies you will inherit in accordance to the provision in their will.

If your spouse dies without leaving a will you will inherit all or some of the estate under the intestacy rules.

If one cohabitee dies the other has no automatic entitlement to inherit. Unless named as a beneficiary in their will the surviving cohabitee will not benefit from the deceased estate.

If a cohabitee received inheritance from their deceased partner under their will they will be liable to pay inheritance tax.

You may be able to make a claim against your deceased partner’s estate as a dependent. If you have any queries in this regard please do not hesitate to contact us.

Any children born during a marriage are presumed to be the children of the husband and wife.

Your children must be financially supported during the marriage. After separation or divorce, the non-resident parent is legally obligated to financially support the children.

A Child Arrangement Order can be sought from the Court if there is no agreement between the parents for contact.

If a child is born out of wedlock, then the father of that child is not entitled to the legal presumption of paternity. The father may obtain Parental Responsibility by registering the child’s birth with the mother; apply for a Parental Responsibility Order or by agreement with the mother which would then be sealed by the Court, making it legally enforceable.

There is an obligation to financially support your children. This is conducted through the Child Maintenance Service, but could also be an informal agreement between the parties.

If you require any advice with regards to the information provided above, do not hesitate to get in touch with our specialist family law team. We offer a free initial consultation with no obligation to instruct us. Our contact number is 0151 375 9968.