Statistics indicate that most unmarried couples who are living together believe that they are in a ‘common law marriage’ and are completely unaware that their relationship does not give them the same legal rights upon separation as those of a married couple. This is concerning, particularly as more and more people are choosing not to marry.
Couples who choose to live together without marrying are known as ‘cohabiting’ couples. Unfortunately, there is no such this as a ‘common law husband’ or a ‘common law wife’ and the rules which apply to determine the division of assets of a divorcing couple do not applying to a cohabiting couple who are going through a separation. This can often have a very unjust and unfair outcome, particularly where parties have been in a serious relationship and cohabited for several years, or even decades.
Generally speaking, when a cohabiting couple without children separate, they will each only be entitled to that what is provided by law. Neither party can make any financial claims against the other. This could lead to one party being left ‘high and dry’ if all of the assets were owned by the other party.
This being said, either party may be able to make a claim in respect of property in which they lived together (whether owned solely or jointly) if they can demonstrate that their interest in the property should be greater than the law confers, i.e. because they have made considerably larger financial contributions to the property than the other party. These types of claims can be complex, time-consuming and costly and it is important that you seek legal advice as to the merits of a possible claim in this regard.
Contrary to popular belief, when a cohabiting couple have children, this does not mean that they are automatically treated as though they are married. However, it does mean that some (although limited) applications for financial/property provision can be made under the Children Act 1989 to ensure that the needs of any minor children are met upon the parties’ separation.
Ultimately, whether you opt to marry or not, is a personal choice and a decision for you. Many couples have perfectly good reasons not to marry and, indeed, the decision to marry should not be made lightly. However, if you choose not to marry, you may wish to consider taking steps to formalise your property/financial relationship, such as entering in to a Cohabitation Agreement (otherwise known as a Living Together Agreement).
If your relationship has broken down and you have any questions in relation to your rights on separation, then get in touch with the Family Law team at ORJ Solicitors.
The Family Law team at ORJ Solicitors offer a free 30 minute consultation at our offices to assess and advise you in relation to your separation, divorce, children, financial and/or property concerns.
Click to view a selection of related articles.