Services for Individuals
The Myth of the "Common Law Marriage"
Contrary to popular belief, a man and a woman who live together do not acquire legal rights similar to those of married couples. If their relationship breaks down, they cannot rely on the remedies available to married couples upon divorce. Instead, they have to rely on complex principles of property and trust law.
Same Sex Couples
Same sex couples have the opportunity to enter into a civil partnership. A registered civil partnership creates rights similar to those of married couples. Same sex couples who do not enter into a civil partnership must, upon separation, rely on the provisions which apply to unmarried heterosexual couples, based on complex principles of property and trust law.
Property
When cohabiting couples separate, one of the most important issues will be their respective entitlements to the family home.
The property might be owned jointly, either as "joint tenants" or as "tenants in common". Alternatively, the property might be owned by just one of the parties.
Where the property is owned jointly as joint tenants, then in the majority of cases each party will be entitled to half of the equity in the property. If one party dies, the property will automatically pass to the other.
Where the property is jointly owned as tenants in common, it may be held in equal or unequal shares and the specified shares will in the majority of cases dictate each party's entitlement. If one party dies, their share of the property will not automatically pass to the other party unless their Will makes such provision.
Where parties hold property as joint tenants, either of them can change the way the property is held by severing the joint tenancy, to create a tenancy in common in equal shares. This procedure does not require the other party's agreement. Once the joint tenancy has been severed, each party is entitled to leave their share of the property to their chosen beneficiary under the terms of their Will, whereas previously their share would have automatically passed to the survivor.
If the property is owned by only one of the parties, the non-owning party can claim a share of the property if they have made a financial contribution towards it but the law relating to these claims is complex and uncertain.
To avoid uncertainty, cohabiting couples can enter into a Cohabitation Agreement (also known as a Living Together Agreement) setting out what should happen if they separate.
Maintenance
Unlike married couples, or same sex couples who have entered into a civil partnership, cohabitants cannot under existing law claim maintenance for themselves from their former partner.
However, where there are children of the relationship, the primary carer of the children can claim child maintenance from the other party.
Pensions
Whereas a surviving spouse will generally be entitled to benefits under the pension scheme of the other spouse upon their death, this is unlikely to be the case where the parties were unmarried unless the surviving party has been specifically nominated to receive benefits under the deceased party's policy. It is therefore important to consider making appropriate nominations of death benefits.
Inheritance
If a cohabiting partner dies without making a Will, the surviving partner will not automatically inherit any part of their estate, as would be the case if they were married. It is therefore important for cohabitants to make Wills reflecting their intentions in the event of their death.
Provision for Children
Where the parents of children separate, whether they are married or unmarried, the primary carer of the children can claim child maintenance from the other parent (generally referred to as the non-resident parent).
In most cases the application for child maintenance will be made to the Child Support Agency. In some cases, for example where the non-resident parent is living outside the UK, an application would instead be made to the Court under the Children Act 1989.
The primary carer of the children can also make a claim under Schedule 1 of the Children Act 1989 for a lump sum payment to cover initial outlay in respect of a child.
A claim can also be made for the transfer of property from the non-resident parent to the primary carer to provide a home for the child or children of a relationship until they reach the age of 18 or complete their full-time education. At that stage, the property would revert back to the non-resident parent.
