In modern society it is increasingly common for couples to prefer to shun the traditional conventions of marriage, and continue happily without the expense and formalities of tying the knot.
Often, such couples may have lived together under the mis-apprehension that if they separated they would be in some way protected by virtue of being a “common law spouse”. The reality is that common law marriage is nothing more than a myth and has no recognition in law.
Cases where parties have not been married can be complex by their very nature, particularly if the separating couple have dependant children.
Children – A mother automatically has Parental Responsibility (PR) for her child. Fathers will have PR if they are married to the child’s mother, or named on the birth certificate. Otherwise, an application to court for PR or registration of a Parental Responsibility Agreement will be required.
Money – There is no claim (beyond child maintenance) for regular payments of income from one partner to the other.
Cohabiting couples have no rights to each other’s money if it is held in separate, individual bank accounts. If a joint account is held and both partners have access to it, then the money belongs to both partners if the relationship ends.
Debts – You are only liable for a joint account or items of joint ownership, not your partner’s own account or property. Some debts can be classed as ‘joint and several’, such as a joint loan or overdraft, or a debt for which you are a nominated guarantor.
Property – Couples may think that even though they don’t legally own a property that by having lived with the property’s owner as his/her common law partner they can pursue and be entitled to a share of the property. Unfortunately this is not automatically the case.
How property is divided upon separation will be determined by strict property laws and will depend on how such property has been ‘legally and beneficially owned’ during the relationship.
Inheritance – If you are not intending to marry it is advisable to make a will to ensure your estate is divided according to your wishes. If one partner dies, the other has no legal right to inherit anything if you are unmarried (unless something is owned jointly such as property). The surviving partner can make a claim against the estate if they have been left with insufficient income on which to live.
As always, prevention is better than cure.
Living Together Agreements
If you are considering living with your partner you may wish to formalise your financial relationship. This can be achieved by entering into a Living Together Agreement.
Such Agreements are becoming increasingly popular as more people than ever choose simply to cohabit rather than marry.
These Agreements can offer financial certainty for both you and your partner going forward and help alleviate the pain, stress and expense.
If you are facing any of the issues raised within this article, please contact us. This can be a complex area, in which a solicitor can offer crucial cohabitation advice.