There is no such thing as a “common law” spouse
Some unmarried couples are under the mistaken belief that they are “common law” husband and wife and therefore upon relationship breakdown they will have the same or similar rights to a married couple upon divorce. This is a myth and there is no such thing as a “common law” spouse. This is the case no matter how long you have been living together or how old you are.
As the law currently stands, an unmarried person has no claim for maintenance for themselves , no claim against any asset in the other party’s sole name, no entitlement to real estate or security of tenure (except for in certain exceptional circumstances).
For clarity on where you stand, and what your options are, you can speak to family law experts Slater and Gordon. As the UK's leading consumer law firm, and our trusted legal partner, they are committed to delivering exceptional and affordable legal services. Book your 30 minute free consultation today.
What is a cohabitation agreement?
Entering into a cohabitation agreement can seek to eliminate one party’s potential claim against real estate. It can also regulate how the couple will conduct their finances both during the relationship and in the event of a break up.
Whilst some may consider the law to be harsh on this aspect, others will say it does provide a certain degree of clarity. In short, you’re either married or you are not. Marriage is a contract and with that comes the benefits and liabilities of a contract – for richer for poorer, you go with the rough and the smooth. If you chose not to enter into the contract of marriage, why should you get any benefit from it? If you’re not married you won’t be liable for any of the downside (provided you’re not named on any of the liabilities).
All this apparent unfairness can be largely resolved by some forward planning. So if you chose not to get married, but you want to protect you and/or your partner, then consider whether the following would resolve the issues. There are two important legal issues that need to be addressed - financial and medical.
Financial considerations if you and your partner aren’t married
- If one of you is putting more money into the purchase of a property, then make sure you tick the correct box on the TR1 form saying that you hold the property as tenants in common in unequal shares. Then have a declaration of trust setting out what those shares are.
- If you can afford to buy a property without any input from a third party, then consider holding the property in your sole name and enter into a cohabitation agreement so that a cohabitee cannot claim an interest later on (usually when the relationship ends).
- Make a Will setting out who will benefit from your estate upon your death – remember, cohabitees don’t automatically inherit on intestate as a spouse would. This is where you can make it clear what you may wish to leave to your children/grandchildren.
- If you do wish to nominate your cohabitee to receive benefits on your death – then speak to your pension provider.
- Regarding any joint debt – you are likely to be jointly and severely liable for any debt between you and your partner. So, if you don’t want to be left with all of the debt should you separate – then don’t put the debt in your sole name in the first instance when you borrow money, ensure both names on the credit card/loan/mortgage. However, to be clear, if your other half doesn’t pay their share – then the creditor may still come after you for it.
Medical considerations if you and your partner aren’t married
If one partner suffers a series illness or injury – their “live in” partner would not be able to obtain any information from the hospital. They are not the spouse and therefore have no legal right to obtain information or make any medical decisions on their behalf. Your living arrangements have absolutely no bearing on their legal rights in this situation.
HM Government is presently considering whether to give greater rights to unmarried couples upon separation. However, there is no guarantee that we will see reform giving cohabitants greater rights in England & Wales, as they do abroad. In the meantime it is best for individuals to seek legal advice to determine how they can protect their legal position upon separation.