The myth of ‘common law’ marriage

Guest Post

There’s an enduring belief that partners who live together gain many of the rights of a married couple after two or more years.

Unfortunately, for the 4 million couples cohabiting – and no matter how unfair the situation is seen by many of those people – this isn’t the case at all. There has been no legal basis for common law marriage in England and Wales since 1753 and couples who ‘only’ live together have very few rights compared to those who are married or have civil partnerships.

This weak legal stance can generate many problems and facilitate the use of a solicitor when times get tough. Firms such as Co-Operative family law solicitors can help guide you through a number of potentially thorny issues, such as:

 

Housing

 

Splitting up with a partner is always a painful time but it can be made even worse if there are disputes concerning money and assets. Who gets to stay in your home or what share each party is entitled to if you are homeowners is often a cause for disputes. If a tenancy or mortgage is under one person’s name then the other party has few legal rights.

Of course, there are exceptions. Under Schedule 7 of the Family Law Act 1996 the court can order the transfer of certain tenancies to a live-in partner when a couple split up. This might be applicable if the person not named on the tenancy was looking after any children and would otherwise be homeless or if they were a victim of domestic violence

There are many variables in family housing law but it’s generally best to plan on the basis that you will have few automatic rights. If you are planning on sharing your life together, it usually makes sense to make formal agreements about what would happen if you did split up.

 

Cohabitation agreements

 

It’s not very romantic but making a cohabitation agreement – sometimes called a living together agreement – can help avoid problems if you do split up further down the line. You’ve probably heard of celebrities signing ‘prenups’ (so-called ‘regular’ people can do this as well of course) and this agreement usually deals with the division of property and spousal support should a marriage or civil partnership break down. This is over and above the legal rights already provided.

A cohabitation agreement is a similar document for people who are cohabiting and have few legal rights. Although this type of agreement is not legally binding it will usually provide guidance for the courts in the case of any disputes. Its very existence can help head off any unpleasant fighting if both parties agree to stick to its terms or use it as the basis for mediation.

 

 

 

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One comment

  1. Perhaps even more important is protecting each other and any children on death by a well drafted Will. In addition Declarations of Trust can be prepared in relation to interests in a property.
    Jane
    Family and Wills and Probate solicitor

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