Why ‘common law marriage’ is a myth - Kuits Solicitors Manchester

Why ‘common law marriage’ is a myth

Why ‘common law marriage’ is a myth

03 May 2019

The number of unmarried couples living together in the UK is the fastest growing family-type.

In a survey carried out by Resolution, the national organisation of family lawyers, it was found that two-thirds of cohabiting couples were under the misconception that ‘common law marriage’ exists when separating their finances upon the breakdown of the relationship.

Here we highlight two major pitfalls resulting from the common law marriage misconception;

1. An unmarried partner who gives up work to stay at home and look after the children, unlike a married person, is unable to make a claim in their own right for property, maintenance or pension-sharing upon separation. Marriage on the other hand brings with it the full consideration of section 25 of the Matrimonial Causes Act 1973, which in turn decides how a court exercises its powers to grant spousal maintenance, property adjustment orders and pension sharing orders.

2. Regardless of the length of the relationship, if a cohabiting partner dies without making a will, their partner will not automatically inherit anything, unless they owned their property together as joint tenants. If married when their partner died without a will, their husband/ wife, as their next of kin, would automatically inherit all or most of the estate.

Key considerations for cohabiting couples that choose not to marry should be whether to enter into a cohabitation agreement, whether a declaration of trust is entered into to protect invested monies made by parties, as well as the drafting of a Will to ensure their affairs are in order. A cohabitation agreement in particular, deals with a multitude of issues which are not suitable to include in a declaration of trust and can address such things as:

  • The payment of household expenses
  • Payment for home improvements
  • ‘Buy out’ clauses and who should stay in the property if it is held in joint names upon the parties separating, and
  • What will happen to shared monies upon separation

This is a non-exhaustive list and cohabitation agreements are drafted with consideration given to individual relationships.  Agreements of this type are given more weight at Court if both parties are separately represented throughout the drafting and signing process and the appropriate disclosure of their financial position has been provided.

If you are considering moving into a property with your partner or indeed want to be able to ensure financial certainty for you both and are wanting advice on the drafting of a cohabitation agreement please contact the family team at Kuits.

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