There still seems to be a lot of confusion and misconception surrounding the idea of a ‘common-law spouse’. The question to consider is whether there is such a thing?
The answer is no, a common law spouse does not exist. Your legal rights as a partner depend on whether you are married or living together. Living together with someone is often informally called cohabitation or “common law spouses”.
When a couple have been living together for a number of years, and perhaps have children together, there is often a confusion that the couple are entitled to the same legal status as a married couple.
Although the term common law spouse is frequently used, legally, there is no such thing.
Therefore the couple do not need to formally ‘break up’ as a married couple would through divorce. They do not need to divide up their assets and finances, as a married couple would, unless assets are owned in their joint names.
Legal issues with ‘common law spouse’ arrangements
Some of the complications arising from the separation of an unmarried couple are:
- Claiming a share of the family home which is held in one of the occupant’s names does not automatically apply to unmarried couples. As a starting point the house would be solely owned by the individual whose name is on the legal deeds. However you might still be able to prove your right to the home if you can show that you have ‘beneficial interest’. This usually means you’ve financially contributed to the home – for example by paying a mortgage or deposit.
- Unmarried couples have no duty to provide for each other financially into the future, unlike married couples who sometimes do.
- Unmarried fathers do not automatically have Parental Rights for the child. Only a person who holds parental responsibility can legally have a say in significant decisions about a child’s upbringing. This may include what name the child shall be known by, education, travel and health issues. Those without Parental responsibility do not. Whether a father has parental responsibility depends on the age of the child and whether the unmarried father is named on their birth certificate.
- If you are living together and you and your partner have separate bank accounts, neither of you have the right to access money held in the other partner’s account. Furthermore, if you have a joint bank account and one of you didn’t use the account at all, for example, you didn’t pay any money in or take any out, it may be difficult to claim that you have any right to it.
- If one partner dies without leaving a will, the surviving partner will not automatically inherit anything unless the couple owned property jointly.
- If you inherit money or property from an unmarried partner, you are not exempt from paying inheritance tax, as married couples are.
You can formalise the legal aspects of your relationship with a common law spouse by drawing up a legal agreement called a ‘cohabitation agreement’, also called a ‘living together agreement’.
A cohabitation agreement outlines the rights and obligations of each partner towards each other and it is legally binding. Although this may seem formal, it’s a sensible and common method of protecting your assets and possessions and right to claim them if you are living with a partner and have no intention marry in the near future.
You can find more on Cohabitation Agreements here.
It is also advisable to have a Will which will outline exactly what will happen to your possessions and finances when you die.
You should always seek legal advice if you have any worries about ownership of assets and finances, or your rights in an unmarried relationship.
At Howells we have a long history of advising married and unmarried couples, and we can prepare cohabitation contracts or living together agreements, together with a Will.
Our Family Law department offer a free 30 minute consultation, fixed fees where appropriate and flexible appointments to suit your needs.
you can email Howells to make an appointment at email@example.com or call us:
Sheffield: 0114 249 66 66
Barnsley: 0122 680 51 90
Rotherham: 0170 936 40 00
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