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Couple Are Mutual Wills a Good Idea
20
Oct
“Common Law Husband & Wife”: Where do you stand?
News

There is a wide misconception amongst the British people and the media that once you have lived with another person for a number of years in a cohabiting relationship and more particularly if you have children with them then you have become “common law husband and wife”. A poll in 2008 found that 51% of people asked believed that cohabiting couples had the same rights as married couples. I suspect that this percentage has not changed significantly since then.

The term “common law husband and wife” has no legal meaning under English law. It does not matter how long you cohabit with someone be it 1 year, 5 years or 30 years, whether you have children or not unless you get legally married or enter into a civil partnership you will not acquire the same rights as you would have acquired had you entered into a marriage or a civil partnership.

This can leave people in a vulnerable and difficult position legally if their cohabiting relationship breaks down. Some of the ways you may find you are affected are set out below:

Maintenance

If you have children whether married or not on separation the absent parent will be obliged to pay child maintenance regardless of whether they have contact with the child/ren. However, if you are in a cohabiting relationship your ex-partner would not have to pay you any maintenance for yourself as they may have to if you had been married (referred to as spousal maintenance). You may find that you do not have sufficient money to meet your needs but will not be able to claim any additional monies from your ex-partner.

Children

There are certain circumstances on the breakdown of a cohabiting relationship where you may be able to make a financial claim on behalf of any children which can include lump sum payments and transfers of property. However, these are for the benefit of the children only and any property that is transferred will go back to the original party once the children finish their education.

Property

On the breakdown of a cohabiting relationship much will depend upon the property you live in i.e is it rented or owned and who is named on the tenancy agreement or if the owned property is in joint or sole names.

With an owned property the starting position would be to look at how the property is legally owned at the Land Registry. If the property is legally owned in your ex-partner’s name then you will not automatically be entitled to stay in the property or receive any share of the property. You may be able to claim that you own a beneficial interest in the property. The law surrounding beneficial interests is complex.

If you were married, the starting point is that you would have a financial claim over the family home even if it is owned in the sole name of the other party.

Savings

You will not be entitled to a share of any savings the other party holds in their sole name on separation.

Contents of home

The contents of the home will belong to whoever purchased them and any items purchased jointly will need to be shared. People often don’t keep receipts for items they purchased and if the dividing of the contents is in dispute then it can often be disproportionate from a costs perspective to pursue this.

You are entitled to receive your personal items returned.

Pensions

You are not entitled to make a claim from your ex partner’s pension on separation as you may have been able to do had you been married. Therefore if you have been disadvantaged financially in the relationship and have not been able to work perhaps because you have taken on the caring role for the children while the other person has been able to work and contribute to their pension, you will not be able to claim a share of this.

Liabilities

Any liabilities that are in one party’s sole name will usually remain the sole responsibility of that party however the liability was incurred.

If you have joint bank accounts, credit cards or utility accounts, then both parties will be jointly and severally liable for any debt incurred, regardless of who incurred it.

If your partner dies

In a cohabiting relationship if one party dies and you were not married or in a civil partnership and they have not made a will then there is no automatic right to inherit anything from them. This includes your family home if it is owned in their sole name or your own it jointly as tenants in common. Holding a property jointly as tenants in common will mean that on death the deceased’s share of the property, which is not necessarily 50% will pass under the terms of the deceased’s will or if they die intestate then it would pass to their estate. A cohabiting party is not on the list of people that will inherit under the rules of intestacy. In such circumstances, at what is likely to be already be a very difficult emotional time you will need to make a claim to the Court for provision from the Estate as a dependent. Such applications are costly and uncertain in terms of outcome.

Family Law team

Statistics shows that marriages continue to decline, so what can you do if you are in a cohabiting relationship to protect yourself in the event that the relationship breaks down?

Cohabitation agreements

You can enter into a cohabitation agreement. Such an agreement can set out what has been agreed between the parties in relation to finances and children and can include a declaration of trust in respect of jointly owned property.

A Cohabitation Agreement is a contract between the parties to it and is enforceable as a contract. Whilst such an agreement lacks the weight and enforceability of a Court Order it will usually be persuasive evidence to the Court as it sets out what the parties had been able to agree to at the outset of their relationship.

Declaration of Trust

In relation to jointly owning property you can ensure at the time of purchase the way you decide to hold the property accurately reflects how you hold it and how you want it to be divided in the event that the relationship breaks down. You can enter into a Declaration of Trust to ensure your intentions are clear in relation to this.

Will

It is important that you have a Will prepared to ensure the other party receives your Estate in the event of your death.

Contact Us Family Law

For all advice with regards to cohabitation, please contact a member of our Family Law team.

Girlings has offices in Ashford, Canterbury and Herne Bay.

Before relying on this commentary please read the Reliance on information posted section in our Terms of Website Use in our Legal section. Please note that specialist advice should be taken in relation to any specific queries and the information above is provided for general information purposes only.

Authors

Gemma Purt

Partner
Family Law
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