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Law Articles

What is the “Common Law Marriage?” 23/04/2019

More and more couples live together for long periods of time without getting married. They live together as if they were "husband and wife". Often people will refer to their living situation as a "common law marriage".

In 2017 there were 3.3 million cohabitating families, more than double the figures provided in 1996.

There is a common myth that should you be living with your partner for a long period of time you are entitled financially to assets as if you were husband and wife. This is not the case.

If, for example, the home is registered in one party's sole name, the other party is not automatically entitled to a share. Even if they owned the property jointly, they would only be entitled to 50% of it or even less if there is a Deed of Trust in the background which states the parties own the property in unequal shares. There is no legislation which particularly protects cohabitees in the event of separation. It is up to the party seeking a share of the property to show and convince the Court that there was a "common intention" that they should receive an interest in it. That party can make an application to the court, but the process can be complex and expensive. The party making the application could also be at risk of paying the other party's legal fees should their claim be unsuccessful.

Difficulties can arise when, for example, one party stays at home to care for children and is unable to contribute financially to the family home therefore leaving themselves with no claims available. There is some protection when the parties have children, namely, a party can apply to the Court to stay in the family home and receive periodical payments under Children Law. However, when the youngest child reaches a certain age, usually 18 years, the family home reverts to the owning party and periodical payments cease leaving the other party homeless and with a lower or no income. This court process takes a long time and can be very expensive, so it is not an ideal solution.

Cohabitees are not entitled to a share of the other party's pension on separation like married couples are on divorce, nor are they entitled to a share of any other assets (such as properties, land, savings, investments etc) owned by the other party, unless those assets are owed by the parties jointly. They are also not entitled to any form of spousal maintenance despite having little or no income of their own. They are entitled to child maintenance where there are children, and the Child Maintenance Service has sole jurisdiction of this issue.

Given the rise in the number of couples choosing to live together rather than marrying, more needs to be done to protect them and any children of the family.

For further information and advice on this issue, and other family law issues, please contact us for a free initial consultation on 01992 306 616 or 0207 956 2740 or email us.

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Manor Law Ltd, trading as Manor Law Family Solicitors, is a registered company in England and Wales - number 7977350, and is authorised and regulated by the Solicitors Regulation Authority - Hertford office SRA number 567506 and City of London office SRA number 568637. Copyright © Manor Law, 2016. All rights reserved.
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