Many couples live together without getting married or forming a civil partnership. Unfortunately, couples that live together often believe that they will acquire the rights of a 'common law' spouse after a few years. 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.
Many people don’t realise that there is a lack of legal protection for them in the event one partner dies or they separate. Living together without being married or being in a civil partnership means you do not have many rights around finances, property and children. 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
When you decide to live with your partner and choose not to get married, it is important to consider what will happen if your relationship comes to an end or if your partner dies.
A ‘living together agreement’ or ‘cohabitation agreement’ is a legal document between unmarried couples who are living together. It sets out arrangements for finances, property and children while you're living together and if you split up, become ill or die. Whilst you can make an agreement at any time, it’s advisable to do so before you move in together. The agreement can be as detailed as you need and can provide for:
- a share of each other’s assets;
- next of kin rights in a medical emergency;
- arrangements for children; and
- responsibility for bills during the relationship
Both partners will require to have independent legal advice on the terms of the agreement, and it will be necessary for both parties to be open and honest 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 at the same time as the living together agreement is prepared.
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 expert legal advice is essential to avoid it.
Judith represented me recently in my divorce proceedings and throughout she was not only professional, providing invaluable advice and guidance, she also showed understanding, compassion, and kindness. I can't thank Judith enough for all her help.
Frequently Asked Questions
Our Family team offers friendly, jargon-free advice on all areas of divorce and family law. We've also added some frequently asked questions here which may help you in learning more about your situation.
A Declaration of Trust is a legal document which relates to a specific property and sets out how the parties’ respective beneficial interests are held.
Under English law those holding legal title of property (the name of the owner on the registration documents) may not be the same as the people holding the beneficial (the financial) interest. For example, if you buy a property with another person and contribute unequal shares towards the deposit or pay different amounts towards the mortgage, the beneficial interest may not be the same for both of you.
A Declaration of Trust protects everyone’s interest in the property ensuring that each party gets what they are entitled to in the event of a relationship breakdown or if the property is sold.
A Declaration of Trust is legally binding provided that it has been prepared correctly.
It is important to note that where a Declaration of Trust is made between parties who live together who later get married then the Declaration of Trust will be superseded by the Matrimonial Causes Act 1973. This means that in the event of a divorce and a dispute as to how the net sale proceeds of the property should be divided, the court will take the Declaration of Trust into account as an indicator of the parties’ intentions, but the court is not obliged to honour the terms as set out in the Declaration. Where a Declaration of Trust has been made and the parties later decide to get married then they should consider replacing the Declaration of Trust with a Prenuptial or Postnuptial Agreement at the relevant time.
Unfortunately, there is no such thing as ‘common law spouse’. If you are not married to your partner, you may have very little legal rights if they die or if your relationship ends. If your home belongs to your partner, you may not be entitled to a share in it even if you have lived there for a long time. You will need a formal agreement in place to protect you.
Couples who live together but do not get married or enter into a civil partnership have very little, if any, legal rights in the event of the other person’s death or if the relationship breaks down. You will need to protect your interest in any assets, or make provision for your partner, by way of a Living Together Agreement (cohabitation agreement).
If you have a Declaration of Trust then your share in the property, even if it is owned by your partner, will be properly recorded. Legally, you are entitled to a share specified in the Declaration of Trust.
If you do not have a Declaration of Trust, then you may have an interest in your partner’s home (e.g. where you can show that you made mortgage payments or contributed to home improvements).
