Common Law Marriage is a Myth

Data from the Office for National Statistics (ONS) shows that the number of cohabiting couple families is growing faster than married couples and has increased by 25% over the past decade; making them the second largest family type (the largest being married couple families).

It has also been established that one in five cohabiting couples wrongly believe that if they have been cohabiting for more than five years, they will inherit the entirety of their partner’s estate or assume executor status. This assumption, more commonly known as common law marriage, is a myth and does not exist in the legal jurisdiction of England and Wales. This means that cohabiting couples are not protected in the same way as married couples.

If you are considering moving in with a partner, please consider the following options available to you to protect yourself and your partner in life and death.

Cohabitation Agreement

A Cohabitation Agreement (also known as a Relationship or Living Together Agreement) records the arrangements between the couple and sets out how you intend to live as a couple and are tailored to each couple and their needs. A Cohabitation Agreement can cover the following topics: ownership of property, ownership of personal belongings and furniture, contribution to finances (bills, mortgage payments, household expenditures etc.), how to resolve joint accounts (this is not an exhaustive list).

A Cohabitation agreement is helpful in the event of a breakdown of the relationship and can help avoid the substantial financial and emotional costs that litigation incurs.

Ownership of a Property

If you are purchasing a property together you will need to consider how to own the property as either Joint Tenants or Tenants in Common. For information on the difference between the two, please see my colleague’s article.

If you are purchasing a property but not contributing equal shares, a Declaration of Trust may be necessary. A Declaration of Trust sets out in what shares the parties own the property so can provide for each person to get back a fair proportion of what they have contributed to the property when it is sold.

Will

As stated above, a cohabiting couple does not have the same rights as a married couple and do not have an automatic right to inherit from each other on death. Cohabiting couples will therefore need to have a Will that specifies to whom they will leave their estate on their death. For example, if there is no Will and only one person owns the property, the surviving partner may lose their home and any right to proceeds from the sale of the property even if they have contributed to the property.

Children

If the cohabiting couple decide to separate, the parent that does not live with the child or children still has an obligation to support them and pay child maintenance.

If you would like further information, please contact our Family Team on 0118 958 9711 or email [email protected]. We offer a confidential one hour initial fixed fee meeting for £95 inclusive of VAT at our offices in Reading.

Further reading

Adele – divorce and the pre-nuptial (or post-nuptial)

Drafting your own Divorce Petitions – Beware

No blame divorce – could it become a reality?

Could Owens v Owens decision lead to no-fault divorce?

Meal tickets for life in divorce cases

Finances in divorce – when to have a clean break

 

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