Cohabiting Couples Q&A

February 26, 2020

1. What does “common law marriage” mean and is it legally valid?

“Common Law Marriage” is likely attributable to the fact that there are common law principles that apply to cohabiting couples. Nevertheless, there continues to be a misconception that a “Common Law Marriage” exists and that it provides the necessary protection for unmarried couples.

In essence, this is a false assumption and cohabitees may place themselves in a difficult position if the parties do not clarify their position in relation to assets, income and children.

2. How do the rights of married and unmarried couples differ?

There are a number of rights that differ between married couples and cohabiting couples in a range of different circumstances:

• If a cohabiting partner dies intestate (without a will) the surviving partner will not automatically inherit anything, unless the home is jointly owned. An unmarried partner would have to apply through theInheritance Act 1975 to seek a reasonable financial provision. Nevertheless, there is still no guarantee of receiving anything from the deceased estate. Contrastingly, a married partner would inherit all or some of the estate.
• If a cohabiting father is not named on the child’s birth certificate as the father, he will not automatically have parental responsibility for the child. Therefore, an unmarried father that wishes to obtain parental responsibility will have to either enter into a parental responsibility agreement with the mother’s consent or apply for a parental responsibility order from the court. A married father is automatically granted parental responsibility.
• Cohabiting couples are not legally obliged to support each other financially and therefore this is a cause for concern for the cohabiting partner with a lower income capacity. In contrast, married couples have a legal obligation to maintain their spouse.
• Unmarried couples have the capability to separate without the intervention of the courts, whereas married couples must go to court to obtain a decree absolute, which officially ends the marriage.
• Should the relationship break down with un-married couples, there is no automatic right to make a claim as to the ownership of the property if it is registered in the sole name of their partner. They may only establish a beneficial interest through establishing either a resulting or constructive trust. A married couple will automatically have a legal interest in their partner’s property as a matrimonial asset.

3. What is a cohabitation agreement and what are the benefits of unmarried couples having one?

As the number of cohabiting couples is increasing, cohabitation agreements are equally becoming more appealing to couples looking to provide themselves and their assets with greater protection upon entering into a long-term relationship. Effectively, cohabitation agreements allow unmarried couples to decide what should happen to their assets and income during their relationship and in the unfortunate event that the relationship breaks down. Without such agreements there is often a lack of clarity between unmarried couples which can unfortunately lead to disputes upon separation. A cohabitation agreement can also play an important role in helping a couple to specify a financial settlement and maintenance for the children if separation does occur. This in turn helps to alleviate much of the stress involved in a separation.

A cohabitation agreement is legally binding provides both parties seek independent legal advice and are fully aware of its implications. Therefore, this has the benefit of providing cohabitees with the protection that they would not otherwise be afforded.

3. How can unmarried cohabiting couples make sure their children are protected?

The Proportion of parents who are cohabiting is now equal to those parents that are married. The importance of having a cohabitation agreement is therefore fundamental to the protection of any children should the relationship come to an end. Unlike married couples, cohabiting couples do have any financial obligations to one another. Unsurprisingly, this can lead to serious problems often for the financially weaker party if the parties separate.

By having a clear agreement in place, cohabiting couples can avoid these issues by having a legally binding document which is enforceable against their partner. For example, the agreement may clarify the maintenance provision that is to be paid in respect of the children. This helps to provide peace of mind to any parents that their children will also be sufficiently provided for in the event of a separation.

Careful consideration should also be given by any father who has not obtained parental responsibility for his children. Without parental responsibility a father is limited as to the important decisions that can be made in respect of the children. Therefore, an application for a parental responsibility order can be made, whereby if successful he can exercise such rights. There is a positive presumption that a father should have an important role in their child’s life.

4. How else can a solicitor advise cohabiting couples on protecting their assets and each other?

Upon the death of a cohabiting couple, there will be no automatic entitlement for an unmarried partner when applying the intestacy rules. Therefore, to ensure that a provision is left to that partner upon the death of the other, it is crucial and most certainly advisable that there is a will in place clarifying what they are entitled to.

If you need assistance with a Cohabitation Agreement, or would like to speak with one of our Family Lawyers in more depth about cohabiting couples, call us on 0800 158 4147 to book an initial 45 minute consultation.