Busting the Common Law Marriage Myth

The common law marriage myth is the concept that if a couple cohabits for a certain period of time they are entitled to the same rights as a married couple when dividing up their assets and finances. In November 2017 Resolution published their results from a survey which found that two-thirds of cohabitating couples wrongly believe that ‘common-law marriage’ laws exist. Listed below are three ways that rights differ between married and cohabiting couples.


Busting the Common Law Marriage MythHouse

On the breakdown of a marriage the family home is considered as a matrimonial asset so can be considered under the Matrimonial Causes Act 1973.

For a couple that has been cohabiting they cannot rely on the same legislation so instead will have to rely on Property Law and Trusts Law.

If the property is in joint names, then the starting point is that the couple will own the property in equal shares unless there is a Declaration of Trust in place. The onus is on the party who wishes to show that the beneficial interest is held other than equally. The Court can consider many factors including the financial contributions the parties made, how the parties conducted their finances and why the house was acquired.  The Courts have ruled that the common intention of the parties could be inferred objectively from their conduct and where it is clear that the parties did not intend a joint tenancy at the outset each party will be entitled to the share the Court considers fair.

If the property is in the sole name of one party this means that the other party, as a non-legal owner, has to establish an equitable interest. Effectively this is done by producing evidence to support a trust arrangement. There is a two-stage test that needs to be applied:

  • Was there a common intention for the ownership of the property to be shared?
  • If so, what was the parties’ common intention as to the quantum of their shares?

There is also a need to establish the legal concept of detrimental reliance. Common intention of shared ownership might be established by an expressed discussion evidencing an agreement or understanding between the parties or by drawing inferences from the conduct (behaviour) of the parties.

The necessary conduct in the Court’s view may consist of direct contributions to the purchase price of the property, for example, whether initially or by assuming liability under a mortgage and/or by payment of mortgage instalments. 

Claim for maintenance

Once again a cohabitee cannot rely on the Matrimonial Causes Act so cannot make a claim for spousal maintenance in their own right for property, maintenance or pension sharing. If there are children from the relationship, it may be possible to make a claim for maintenance on behalf of the children but that would be dealt with separately.

On Death

If a married person dies without having made a Will, then their assets will fall to their spouse and/or children automatically.This does not occur if a person is not married. Therefore if there is an intention for the surviving partner to inherit it is vital to make a Will. A Will is also necessary if there are children, as for example guardians for children can be applied via a will.

Further Reading:

How professional Executors can benefit you and your family

The Kitchen Table space- the best place to start

Divorce - The importance of seeking legal advice

High Court has ruled couple’s Mirror Wills can be ‘set in stone’

 
Contact Paul Wild, our Family Partner, on 0118 958 9711, email [email protected], or simply click here, for a confidential initial fixed fee meeting for £95 inclusive of VAT at our offices in Reading.

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