The Myth of the ‘Common Law Marriage’

04/04/2019

As a family law solicitor I often have to break the news to clients that they do not have the ability to claim any financial support against their ex-partner even if they have been living together for years.  There is no such concept as a ‘common law marriage’.

Many people are not aware that this is not a recognised legal status or that living together does not automatically give rise to the same legal rights against their partner that they would have had if they had been married.  This is particularly worrying given that an increasing number of couples are choosing not to marry.

couple holding hands in sunset

Unmarried couples living together should be aware of the following facts:-

Children

The father who is married to the child’s mother at the time of birth will automatically acquire parental responsibility over the child.  This effectively means that they will have all of the legal rights and responsibilities that a parent will normally have in relation to their child, such as input over where their child is schooled, their religious beliefs and similar issues.

However, if the father did not marry the mother and the child was born before 1st December 2003 or he is not on the birth certificate, then he will not automatically acquire parental responsibility.  To obtain this, he will either need to enter into a formal agreement with the mother or to obtain a Court Order giving him permission. 

Inheritance Tax and Capital Gains Tax

Your marital status can also affect whether you have to pay any tax.  Transfers of assets between a husband and wife (or civil partners) will be exempt from CGT, but this does not apply if the couple are not married.  Similarly, exemptions for inheritance tax that are given to married couples are not available to those that are unmarried.

Death

If one of an unmarried couple dies without leaving a Will, then the other will not automatically inherit their estate, whereas if they had been married, they will inherit all or most of the estate.  

Separation

Perhaps the biggest misconception is that living together will give rise to the same rights on separation as they would on divorce.  This is simply not the case.  Marriage gives a couple the potential to make a claim against all of each other’s assets, including each other’s properties.  However, there are no such rights for unmarried couples and they can only obtain a share of their partner’s property if there is a written agreement, such as a Declaration of Trust or Cohabitation Agreement allowing them to do so or they can prove they made a contribution to it, which is often difficult to do.

Similarly, whilst a spouse could pursue ongoing maintenance from their husband or wife, if they are not married, then there is only the ability to make a claim for maintenance to support any children that they have together.

Marriage is not for everyone, but if you choose to live with someone then it is important to establish your rights.

If you are planning to move in with your partner then please contact our family law department on 01277 221010 in order to discuss the possibility of putting in place a cohabitation agreement to safeguard your position and/or discuss any other issues for your benefit.