Common Law Marriage

For many years, a myth has existed around the rights of cohabiting couples on relationship breakdown. It is referred to as the “common-law-marriage”.

Cohabiting couples have wrongly assumed that, should their relationship break down, they would have the same legal rights as couples who are married but subsequently divorce.

The Law

There is a sprinkling of legal rules rooted in property, trust and contract law which can provide cohabitants with interests in their partner’s property. However, the current law is unsatisfactory. It is complex, uncertain and expensive to rely on as it was not written with families in mind. Many feel it discriminates against the homemaker who makes no direct contribution to the purchase of a property and many find Judges’ decisions inconsistent.

Property law will determine ownership of solely or jointly owned property. The court can make an order for sale of property but it is important to note that the court cannot always take into account every circumstance that people often feel to be important. In cases of domestic violence, one party can even be temporarily excluded from the former home.

Turning to maintenance, it should be noted that only married couples have a right to maintenance for their own benefit. All splitting couples, however, can seek child maintenance through the Child Maintenance Service. This service will ensure parents take responsibility for providing financial support for their children Further information can be found on www.cmoptions.org.

Courts can also order capital to be made available for minor children, usually for housing or educational needs. It can order a transfer of the splitting couple’s former home until such time as a child reaches the age of 18, for example. However it is then usually returned to the parent who provides it.

Protecting your position

One way cohabiting couples can help to protect their financial position is by entering into a cohabitation agreement in an attempt to decide ‘who will get what’ if the relationship breaks down. However, Courts will not consider themselves automatically bound by them.

It is perhaps not surprising that there has been considerable discussion in recent years regarding a reform of the current legislation. It is hoped that new law will be introduced to give unmarried couples as many rights as divorcing couples as is the case in many other countries however discussions are still ongoing. It therefore remains vital to record all agreements in writing and certainly to record the assets each party has in his or her sole name before entering into cohabitation. Financially, cohabitation is not something to be taken lightly and it is always wise to take advice beforehand so that you know the likely pitfalls.

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