What is a “Common Law” Partner and How Do You Become One?
A “common law” partner, often referred to as a “common law spouse”, is someone you have lived with in a marriage-like relationship, perhaps have children with, without being legally married. There is no formal process to become a common law partner and the term “common law partner” is effectively a label used in everyday life rather than the legal status of a relationship.
Many ‘common law spouses’, also known as those living in a ‘common law marriage’, believe they are entitled to the same legal rights as a married couple. Although the term common law partner is frequently used, legally, there is no such thing. Therefore, your legal rights as a common law partner depend upon whether you are married or are living together. Couples who live together but are not married are often informally called ‘cohabitees‘.
Can Same-sex Couples be Considered as Common Law Partners?
Yes, a partner in same-sex couple can be considered as a common law partner. Common law partners are not limited to opposite-sex couples and can apply to same-sex couples as well.
Most people consider the criteria for a common law partner typically includes factors such as cohabitation, mutual commitment, and intention to live together in a marriage-like relationship.
Complications From Common Law Partner Arrangements
There are a number of complications that arise from ‘common law partner’ separating. These include:
Claiming a Share of the Family Home
If the family home is held in one of the occupants’ names, there is no automatic right for the other to have a share of it on separation. As a starting point, the house would be solely owned by the individual whose is the named (or registered) owner.
However, you might still be able to prove your right to a share of the home if you can show that it was intended that you both share the equity in the property (the “beneficial interest”). This usually means you’ve financially contributed to the home – for example by paying a mortgage or deposit.
Unmarried fathers do not automatically have Parental Responsibility for their child (ie the right to make decisions on their child’s behalf). Only a person who holds parental responsibility can legally have a say in significant decisions about a child’s upbringing. This includes things like deciding the child’s name, their place of education, arrangements for travel and holidays, health issues etc.
Whether a father has parental responsibility depends on whether the unmarried father is named on their birth certificate or has otherwise acquired parental responsibility for example by entering a parental responsibility agreement with the child’s mother.
Unmarried couples have no duty to provide for each other financially into the future, unlike married couples who sometimes do. There is also no general right to make a financial claim against the assets held in the other person’s sole name, for example against things like pensions that have accrued during the relationship.
If you are living together and you and your partner have separate bank accounts, neither of you has the right to access money held in the other partner’s account.
If one partner dies without leaving a Will, the surviving partner will not automatically inherit anything unless the couple owned property jointly. This has significant implications. If you inherit money or property from an unmarried partner, you are not exempt from paying inheritance tax, as married couples are.
What Happens if a Common Law Partnership Ends?
When a common law partnership ends, there may be certain legal obligations to consider, depending on the specific circumstances. In general, common law partners do not have the same legal rights and obligations as married couples. However, there may still be legal considerations to keep in mind.
One important aspect to consider is property rights. If you and your partner owned property together, such as a house or other assets, you may need to determine how to divide or separate these assets. This could involve negotiating an agreement and seeking legal advice to ensure a fair division.
If the property was owned in the other person’s sole name consideration also needs to be given about any potential financial claim because of the contributions that have been made or otherwise on behalf of and to meet the needs of any children of the relationship.
Another consideration is any joint debts or financial obligations that you may have incurred during the partnership. It is important to understand your responsibilities and obligations regarding shared debts and how they should be handled upon separation.
If you have children together, as stated earlier, there may also be legal issues related to custody, support, and visitation. It is important to consult with a family law solicitor to understand your rights and responsibilities in these matters and whether an agreement can be reached or a Child Arrangements Order may be required to decide where the child should live and the time that they should spend with the other parent.
It is recommended that you consult with a legal professional who specialises in family law to understand the specific legal obligations that may apply in your situation. They can also assist with preparing a Separation Agreement and Parenting Agreement confirming the terms of any separation and the appropriate arrangements for children moving forwards.
Should I Make a Will?
If there is no Will, then the rules of intestacy will ultimately determine how a deceased’s assets are distributed.
If you aren’t married and one of you were to pass away, the partner left behind wouldn’t automatically have any right to property or assets left behind (such as your home).
Making a will is a good way to make sure that your partner is considered as part of any inheritance you leave.
Cohabiting couples with valid Wills in place should be aware that subsequent marriage or formation of a civil partnership will automatically revoke their Will, unless the documents state that they are made in expectation of marriage or formation of a civil partnership. See more in our article Making a Will – What you need to know.
How Will Cohabiting Affect My Inheritance?
Under the intestacy rules, there is no provision that entitles a surviving cohabiting partner to inherit anything from their deceased’s partner’s estate, regardless of the length of time that the couple were cohobating or if they were engaged to be married.
Also, if you inherit money or property from an unmarried partner you are not exempt from paying inheritance tax, as married couples are.
What is a Cohabitation Agreement?
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 the right to claim them if you are living with a partner and have no intention to marry in the near future.
This can avoid the difficulties (and in some cases the need for contested court proceedings) that would otherwise have to be addressed in the event of separation.
When a cohabitation agreement is drawn up, it is advisable to draft a Will which will outline exactly what will happen to your possessions and finances when you die.
How Our Family Law Solicitors Can Help
To understand your specific legal rights as a common law spouse, it is important to consult with a family law solicitor. They can provide you with accurate and up-to-date information based on your specific circumstances.
You should always seek legal advice if you have any worries about ownership of assets and finances or your rights in an unmarried relationship.
A family law solicitor can not only offer advice on how to protect your own interests as a common law partner, but help you draft a cohabitation agreement and give advice on how to legally manage your assets with your partner. They can also help with a separation agreement to confirm the terms of any separation in a legally binding way.
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, and give legal advice on estate planning to protect your family.
Our Family Law department offers 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 firstname.lastname@example.org or call us:
Sheffield: 0114 249 66 66
Barnsley: 0122 680 51 90
Rotherham: 0170 936 40 00
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