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The ‘common law marriage’ trap

Posted on the 5th August 2022 by Nicola Starbuck

It is a popular misconception that couples who live together are regarded as having the same rights as married couples. This is especially true where the couple may have children or property together, or who have lived together for a long time. Unfortunately, this is not the case. The law does not recognise ‘common law marriage’. Simply, there is no such thing.

If you live with your partner, you do not have the same legal rights as a married couple. In fact, you may not have any rights at all. If your relationship breaks down or your partner dies, then you will not necessarily have an interest in any asset owned solely by your partner. This includes their property and pensions.

Many couples choose not to get married and the reasons for that are varied. Whatever the reason, it is important to consider what will happen if your relationship ends or your partner dies. It is important to take steps to protect your interests when you decide to live together.

A cohabitation agreement is a legal document between an unmarried couple that sets out the arrangements for finances, property and children during the relationship and in the event that the relationship comes to an end or one of the partner’s dies. A cohabitation agreement can deal with the assets of the relationship, next of kin rights and the arrangements for any children. Both partners will require to have independent legal advice and will need to be honest and open about their financial circumstances.

If you are living in your partner’s property and your relationship ends, you will not automatically acquire an interest in your partner’s property even where you have made a financial contribution. The law which deals with these types of disputes is complex and unpredictable. You may need to have a declaration of trust drawn up.

Unmarried parents have the same financial obligations to their children as married parents. The only difference with unmarried parents is the law relating to parental responsibility. An unmarried father who is not named on the birth certificate does not automatically have parental responsibility for his children and this may have implications when important decisions about the children need to be made (e.g. medical treatment and education).

If you are not married and your partner does not have a Will, you will not automatically inherit any part of your partner’s Estate if your partner dies. There may also be inheritance tax implications if you do benefit from their Estate.

The ‘common law marriage’ trap is a dangerous one and our expert legal advice is recommended to help you avoid it.