The biggest misconception most couples have is surrounding the rights that they may have against their partner if they are cohabiting and are not married.

A recent survey carried out by National Centre for Social Research, released in January 2019, confirmed that “almost half of people in England and Wales mistakenly believe that unmarried couples who live together have a common law marriage and enjoy the same rights as couples that are legally married.

“The first findings from this year’s British Social Attitudes Survey reveal that 46% of us are under the wrong impression that cohabiting couples form a common law marriage – a figure that remains largely unchanged over the last fourteen years (47% in 2005) despite a significant increase in the number of cohabiting couples. In contrast, only 41% of respondents rightly say cohabiting couples are not in a common law marriage.

“Responses to the question show that people are significantly more likely to believe in common law marriage when children come into the equation; 55% of households with children think that common law marriage exists; only 41% of households without any children do so.”

This is simply not true: if you are not married, then you are not in a common law marriage and you do not have the same rights as those couples who are married.

So what happens if you are not married?  Currently, in  England and Wales there are no laws in place setting out what rights/claims cohabitees have against their partner if they separate (this is different in Scotland).  It does not matter how long you have been together, or how many children you may have together, the basic point is that you have no automatic rights to make a claim against your partner.  This is often a surprise to people when they come and see us, expecting us to advise them that their partner has a duty to provide them with financial support following the breakdown of their relationship (which may be the case if you are married).

The reality is that there is no one law which sets out a cohabitee’s rights.  There are lots of different laws which deal with different issues.

If you are living with your partner in a house, you need to check how you own it.  Do you own it jointly, does your partner own the property outright, or do you own it?   General property laws apply to the ownership of the property.  If you own it jointly, the position is more straightforward.  But what if you live in your partner’s property, can you make a claim?  It depends on whether you have made a financial contribution to the property, which might be a contribution to the purchase price, a contribution to the mortgage payment, or a contribution to any works carried out on the property.  If you have, then you are likely to have an interest in the property.  If you have made no financial contribution to the property, it is unlikely that you would be able to claim a financial interest in the property.

Does it make a difference if you have children together? In short, the answer is no.  As there are no laws in place protecting cohabitees, and strict property law applies, it usually is not a relevant factor that you have children together.  That does not give you a claim against your partner’s property.  It will give you a claim for child maintenance, and you might have a claim under the Children Act to claim some financial support.  This might be in the form of school fees payments, or a lump sum to cover a specific requirement that the child may have.  It can cover a property for a child, but it is important to note that the property does not belong to the child, it remains the property of your former partner, and they only have to provide a property for you and the child to live in until the child reaches their majority.  Therefore it is not the same as a divorce when, for example, a property is transferred to the wife outright.

Is there anything you can do to avoid these issues?  Yes.  At the beginning of the relationship it is advisable to enter into a cohabitation agreement which sets out the expectations of the parties at that stage should the relationship breakdown in the future.  This can be what might happen to the house, whether one party can stay in the house with the children until a specific date or what each party will receive from the net proceeds of sale.  Whilst it can be depressing to think about the end of the relationship at the beginning, it is better to have the discussion then, and not when you are in the middle of the breakdown of the relationship.

For more information, or preliminary, confidential discussion please contact our Family Team.

Article written by Emma Benyon-Tinker, Associate in our Family Team.