Common Law Partners

Common law partner meaning

Common law marriage is the idea that two people who live together and act as if they are husband and wife have the same rights as a married couple, despite not having had a formal marriage ceremony.

Despite this popular belief, common law partnership is not a legally recognised marriage status in the UK. 

To avoid confusion, we call these couples cohabiting or unmarried couples. The law in England and Wales treats them as separate individuals with no special legal status, even if they have been together for decades.

What is a common law partner?

A common law partner is the colloquial term for someone who is in a long-term, committed relationship living with their partner as if they were married.

The misconception is that just living together for a certain amount of time automatically brings about the same legal protections as marriage.

In reality, there is no such thing as a common law marriage. For the relationship to be legally recognised, you will need to be officially joined through a marriage or civil partnership registration. 

Without that, you are simply two individuals who share an address, in the eyes of the law.

What rights do common law partners have when they separate?

Compared to married couples and civil partners, cohabiting partners have only limited rights when the relationship ends.

Property ownership

When it comes to property ownership, things can get complicated for unmarried couples. If you both own the family home together, you both have the right to stay there and share the responsibility of paying the mortgage until it’s completely paid off. 

However, this situation can often become unmanageable, leading to tough decisions about the property. You might choose to sell the house and split the profits or one of you could buy out the other’s share.

Single ownership, on the other hand, means that one person has full legal ownership of the property. They alone can decide whether to sell or keep it. The other person has no right to continue living there, no matter how long the relationship has lasted.

In some cases, the partner who doesn’t own the property might be able to make a claim under The Trusts of Land and Appointment of Trustees Act (TOLATA) on the basis that they have a beneficial interest in the property. In a TOLATA claim, that partner needs to show the court that the couple intended for them to have a share in the property, even if the title says otherwise. 

To support this claim, they might present evidence such as contributing to the mortgage payments or paying for significant renovations to the property.

It is strongly recommended that you know your property rights when moving in with a partner or buying a house together.

Finances and Financial Support

When you part ways, joint bank accounts and investments are divided equally unless there’s a specific agreement stating otherwise. If an account is solely in one person’s name, it stays with that person.

Common law partners do not have to provide financial support to each other following separation. The court cannot make any order for spousal maintenance, although you can always make an arrangement privately

Pension Claims

Cohabiting partners often do not have any rights to the other’s pensions. Some schemes provide options for a person to leave their pension to their common law partner, but it is not an automatic right unlike a spouse.

Inheritance

In the event of death, common law partners are not automatically entitled to inherit from their partner’s estate. The only way a common law partner can ensure they receive any inheritance is if their partner makes a will naming them as a beneficiary. Otherwise, intestacy rules will kick in and the estate will be distributed according to blood relatives.

What are the parental rights of common law partners?

Mothers automatically have parental rights and responsibilities, as do fathers who are married to the child’s mother.

Unmarried fathers must be named on the birth certificate to have parental responsibility. Alternatively, they can create a parental responsibility agreement or make an application to court to formalise their legal responsibilities towards their children.

When the parents’ relationship ends, decisions must be made regarding child residency, visitation and child support. Child maintenance is payable by the non-resident parent to the other parent regardless of whether they are married or not.

Many parents believe that having parental responsibility gives them an automatic right to see their child, but you will need to iron out these details. If couples can’t come to an arrangement, either party can apply to the family court for a child arrangements order, which formally sets out how things should work.

There is no ‘one size fits all’ when it comes to your children arrangements. Legal advice is highly recommended in such instances and any arrangements must be made in the best interests of the child.

How can I protect myself as a common law partner?

Prevention is better than cure with common law couples, and the easiest way to protect yourself is through a cohabitation agreement. This document lays out how your relationship will work when you are living together, and can specify property rights and financial arrangements in case of a breakup.

It is also important to have a will in place to ensure that assets are inherited as desired.

Depending on your property ownership, you may also want to consider signing a declaration of trust, setting out individual contributions and ownership shares in the family home. A solicitor may recommend changing the ownership structure on any shared property to protect against potential disputes in the future.

Finally, it is important to review and update your cohabitation agreement and will as your relationship evolves and circumstances change. The birth of a child, a change in employment or the purchase of a new property should all prompt a review, to make sure that both partners are legally protected

Protecting the rights of common law partners

Living together without being married offers less protection than you might think, but that doesn’t mean you have to tie the knot to protect your rights.

The family law experts at Osbornes can help you put together the right combination of legal documents that make life easier for both of you today, and ensure a fair outcome if your relationship ends. Our team can offer genuine expertise in this complicated area of law.

To speak to an expert:

• Call us on 020 7485 8811; or
• Fill out our online enquiry form.