The number of people cohabitating in England and Wales rose from 1.5m in 1996 to more than 3.6 million people in 2021. Alongside this statistic more than 46% of us apparently still believe in the myth of common law marriage.
There is still a misconception that once a cohabitating couple has been together for a certain period of time, they will have the same legal rights as a married couple. These perceived rights relate to inheritance, property and finances in the event that one of the partners dies or the couple separates. This is because the couple’s relationship is mistakenly thought of as a ‘common law marriage’.
However, we’ve used the word ‘myth’ advisedly in the title of this blog because this is simply not true.
At the time of writing cohabiting couples can make very few claims to their former partner’s assets or property in the event of death or separation relying on complex property laws and trusts principles.
Cohabiting couples are not automatically each other’s next of kin.
If their partner dies without leaving a Will or has not provided for their partner in their Will, the surviving partner will not automatically receive a share of the estate. If they wanted to receive financial provision from their partner’s estate they would need to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975.
If the partner leaves a Will stipulating their estate is to pass to the surviving partner, this partner would not be entitled to claim spouse or civil partner exemption to Inheritance Tax (IHT) meaning IHT could be payable on the estate whereas for a married couple or a couple in a civil partnership it would not.
The outcome of the separation will not be driven by the terms of the Matrimonial Causes Act 1973 as it would be when a married couple or couple in a civil partnership splits. For cohabiting couples there is no specific legal process governing the separation.
One cohabiting partner has no legal right to make any claims to the income of their former partner, even if one partner’s income was significantly higher or the claimant has come to rely on their former partner’s financial support and even where one party may have made sacrifices for the relationship such as giving up a career to look after the parties children.
Cohabiting couples cannot apply to the Family Courts to make a claim for a share of their former partner’s pension.
Any jointly owned property between cohabitants would be dealt with under the Trust of Land and Appointment of Trustees Act 1996 (TOLATA) but this would be dealt with in the Civil Courts, not the Family Courts as would be the case for a married couple. Cases under TOLATA can be costly, complicated and appear unfair often making it prohibitive for the financially weaker party.
If the family home is owned solely by one partner, the other partner would need to use property law – and, more specifically – the principles of constructive trusts to make a claim for the property or even a share of the property.
If the home in which a cohabiting couple live in is in the sole name of one of the couple, the non-owning partner would also not have the same right to remain in the property that a spouse would have unless their former partner gives them their permission.
Where children are involved , a cohabiting partner can make claims for financial support for any child under 18 under Section 1 of the Children’s Act 1989 but the financial provision is for the child and not the parent.
Although various government departments and other public interest groups are pushing to tighten up the legal rights of cohabiting couples, cohabitating couples still need to take advantage of the available ways to protect themselves. These include:
If you are planning to move in with your partner and would like to make sure you are both fully protected against separation or a death, please contact Kate Moran in our family team.