Common Law Partners: Legal Status & Rights

25 Mar 2019 | Lisa Pepper

Table of Contents

Understanding the Legal Status of a Common Law Partner in England

Although many people may consider themselves as a ‘common law partner’ if not married to their partner, in reality, and from the viewpoint of the courts in England, there is no such thing as a common law partner, common law wife or husband. And it doesn’t matter how long the couple has lived together.

To avoid confusion by using the terms common law partner, common law wife or husband, we refer to them as cohabitees, cohabiting couples and unmarried couples – people who live together but have not formalised their relationship by getting married or entering a civil partnership.

Unlike married couples, for whom there are clear laws to follow when seeking a divorce or separation, the law relating to cohabitees when they separate are far from clear and frequently not as helpful to the financially weaker party.

Issues Upon Separation for Cohabiting Couples

Issues concerning a cohabiting couple upon separating include those relating to children, where and with whom they will live, financial provisions for the children, and finances and assets between the individuals, in particular how they will both find somewhere suitable to live.

Parental Rights and Responsibilities

When a child is born to an unmarried couple, the rights and responsibilities automatically belong only to the mother. The father will only automatically be presumed to have such parental rights and responsibilities if he has been named on the child’s birth certificate.

Financial and Property Considerations

The law relating to a cohabiting couple’s finances and property assets is very different from the rules relating to the finances of a married couple. In general, the Courts will try and clarify who owns what property or whether either or both parties have contributed to the ownership of an item of property so that they are deemed to have a “beneficial interest” in the property. Unlike when married couples divorce, cohabitees are not entitled to pay or receive maintenance to each other except for the benefit of children. However, in high net worth cases, a carer’s allowance might still be considered.

Child Support and Maintenance

In many cases, when a cohabiting couple separates, an application to the Child Maintenance Service (‘CMS’ previously the CSA) is made to ensure that both parents continue supporting children.

In some circumstances, even when a parent has little income, if they have capital, the CMS can take this into account. See Child Maintenance: When is capital, income?

In some cases where for example, the parent who is not living with a child has a particularly high salary, the Court may make an additional child maintenance award (a ‘top up order’) over and above the amount the CMS has awarded. See Child Maintenance for High Earners.

The court will also consider whether or not it will benefit the child to award a lump sum payment and whether funds should be made available to provide adequate housing for the child.

How we can help

If you are in a cohabiting relationship and need legal advice on your rights and obligations, contact our experienced family lawyers today. We can help you navigate the complexities of cohabitation law and ensure that your interests are protected.

To speak with one of our solicitors, contact us by:

  • Filling in our online enquiry form; or
  • Calling us on 020 7485 8811

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