What legal rights does cohabitation actually provide? Lucy Theobald, Partner in Coodes Solicitors’ Family Team, comments on the enduring power of the common law marriage myth.
A recent survey by the National Centre for Social Research and University of Exeter has revealed that 46 per cent of us believe that cohabitees share the same rights as married couples. In other words, around half of the UK population still believes in the myth of common law marriage, despite the fact that it has no base in English law.
More of us are choosing to live together without getting married. If, along with the UK’s other 12.7 million cohabiting couples, you choose not to tie the knot, what rights can you and your partner expect?
Generally cohabitees have limited property rights. An important difference compared with married couples is that one partner does not usually acquire the right to a share in the other’s property just because they live together. This can have a devastating impact on couples who separate, or if a partner passes away. My colleague Darren Higginson writes about this in more detail here.
There are ways in which cohabiting couples can give themselves some protection. A Living Together Agreement sets out arrangements including day-to-day living expenses and a couple’s preferences for what should happen to the property, should they separate in future. This must also be reflected in the Will of both people to ensure their wishes are followed in the event of their death.
The number of cohabiting couple families has doubled since 1996 and now accounts for around 15% of UK families. Worryingly, the recent survey shows that that people are significantly more likely to believe in common law marriage when children are involved. 55% of households with children who responded to the survey thought that common law marriage exists, compared with only 41% of households without children.
Cohabiting couples do not automatically get the same rights as married couples, when it comes to children. Unless he is named on the child’s birth certificate, an unmarried father has no legal status as a father.
Unlike with divorce, there is no entitlement for maintenance or financial support when cohabitees separate. Unfortunately, if you are unmarried you face more financial risks should you separate or if your partner dies.
Growing numbers of older couples are choosing to live together. If you are starting out in a new relationship later in life, the issues around finances can be complicated, particularly if you have been married before and have children.
If you are not married, you have no automatic right to inherit any part of your partner’s estate or assets. Therefore, it is very important for cohabiting couples to have an up-to-date Will that sets out their wishes. You should also be aware that a marriage automatically overrides a Will. If you do not have a Will then the state will decide who should inherit under the Intestacy Rules. It is important to know that a cohabitee has no rights under intestacy.
Whether or not you decide to tie the knot or continue to live as a cohabiting couple, make sure you understand your rights. Citizens Advice has some useful information here about the legal differences between marriage and cohabitation. If you choose not to marry, it is vitally important that you take any steps you can to protect yourself, your partner and your children, including having a Will drawn up by an experienced lawyer.