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Does ‘Common Law Marriage’ exist?

PLEASE NOTE: Information in this article is correct at the time of publication, please contact DFA Law for current advice on older articles.

The cohabiting couple is the second largest family type in the UK, and the fastest growing, with statistics published by the Office for National Statistics in November 2017 forecasting approximately 3.3 million families in 2017.

It is worrying, therefore, that millions of unmarried couples living together are not aware that they are at significant financial risk as a result of the current law.

Resolution recently commissioned a poll of over 2,000 British adults. This highlighted the misunderstanding that the “common law spouse” exists; with a quarter of Britons wrongly believing that living together for over two years will afford them similar rights to married couples upon separation.

The common-law marriage has not existed in Britain since 1753 and the rules for separating couples are very different to divorcing couples. It is, therefore, important to consider your position before you decide to cohabit.

If you are jointly purchasing a property, you may need to consider how the property should be held and what the legal implications will be upon separation or death. A deed of trust should also be considered which can protect each party’s contribution towards the purchase price, for example.

If you are considering moving in with a partner who owns their own property, you should have a discussion about whether the legal title needs changing and whether you will be making any financial contributions towards the property. If financial contributions are being made, thought should be given as to whether these constitute an interest in the property and how this interest can be protected. You may also need to think about whether there is anything else you need to know about the property, particularly if it is held in joint names with a third party, such as a former partner or spouse.

Many people assume that there are other financial claims for cohabiting couples upon separation. If there are children of the relationship, child maintenance will be payable to the parent with whom the children are living, but other than this, you will generally only be looking at assets held in joint names. Such claims are also limited to those under the laws of property and trusts.

Whilst Resolution, and many lawyers, feel that the law needs to change to provide basic rights to cohabiting couples, you should ensure that you are protected under the current law. You should;

– Have frank discussions with your partner about your cohabitation.
– Discuss entering into a legal document, known as a cohabitation agreement, which can detail how the property will be dealt with during the relationship, and upon separation.
– Prepare a will.
– Always seek legal advice.

More couples are accepting that it is better to agree your respective intentions from the outset, than to face legal intervention and costly court proceedings upon separation. Whilst this may not be romantic, it is vital that steps are taken to avoid financial risk.

If you require any advice about separation or cohabitation matters, please call DFA Law on 01604 609560 and we’ll be happy to help.

Kelly Willmott
Family Law Solicitor

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