In a survey we conducted at Stowe, we asked people what they though about cohabitation, and the rights of unmarried couples on separation. 79% of people believe that a common law marriage is a legal term and 43% of people believe that cohabiting couples (i.e. romantic partners who live together) have the same legal rights as married couples. We’re going to explore this in this article.
It’s not only divorce that there are myths around. Relationships and breakups come with so many misunderstandings, and they can often be an easy forest for a rumour fire to spread through.
The myth
Huge numbers of people believe that there is such a thing as a common law marriage. People often believe that by virtue of living together, they are ‘de facto’ married, and are entitled to legal rights in the same way married people are. This includes:
- Tax benefits including the marriage tax allowance
- Inheritance tax exemptions
- Free movement of savings and investments between spouses
- Capital Gains Tax benefits
The reality
The reality is that the common law marriage is a myth. Regardless of how long you’ve lived with your partner and/or have had children together, you are not married. Unfortunately, you do not have the same legal rights as married couples, including rights to property, inheritance or other assets if you separate or one party dies.
Some forms, such as for insurance, still offer common law marriage as an option for relationship status. However, this means nothing in the eyes of the law.
Understanding cohabitation and legal rights
More and more couples are opting to live together either before marriage or instead of getting married. There are many factors influencing this decision. For example, the cost of weddings has skyrocketed in recent decades, and not many people can afford a big celebration. Others don’t want to tie themselves legally or financially to their partner. Some are put off by the historical, cultural and religious associations marriage has.
Living with a partner without being married, however, comes with its own set of issues. The most challenging part is if you separate or one of you passes away. Your right to claim on assets is not automatic.
There are some limited claims that unmarried cohabitants can make regarding property, which fall under the Trust of Land and Appointment of Trustees Act (TOLATA). Financial provision for children can also be claimed under Schedule 1 of the Children Act. This section allows a parent to get a court order requiring periodical payments from the child’s other parent providing it is for the benefit of the child.
Understand more about cohabitation laws
After a separation, you can get a Separation Agreement. These are not court orders, but can be useful documents to provide ongoing clarity for:
- Finances
- Property
- Major assets
- Child arrangements
Next steps
There is, of course, a hugely emotional side to breaking up. When divorce is not a factor, it can feel that your experience is not valid as you don’t have the legal process to make your separation ‘official’. It’s important to have the right support network around you to guide you through the emotional, practical and legal aspects.
If you’re an unmarried cohabitant and you are in the process of separating from your partner, or wanting to separate, it’s important to get early legal advice. An expert family lawyer can give tailored advice for your unique circumstances.
Useful Links
A guide to cohabitation agreements
What happens when unmarried couples separate? Considerations for cohabitees
Legal Q&A: “We’re separating after 16 years, what are our rights?”
