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Common Law Marriage: Your Divorce Entitlements and Rights

Common Law Marriage: Your Divorce Entitlements and Rights

In 2017, there were 3.3 million cohabiting families in the United Kingdom. It is a common assumption that a long-standing relationship between a couple — of the same sex or different sexes — confers the same rights as marriage or civil, partnership. It does not. English law does not recognise the idea of a ‘common law spouse’, so a common law marriage has no legal grounds. In this article, we’ll explain more about cohabiting couples and their rights when it comes to separation.


What is ‘common law marriage’?

The concept of common law marriage has no legal basis in the UK. The idea that, because a couple live together for a certain period of time, they become recognized as having a ‘common law marriage’, is a misleading myth. Cohabiting couples, regardless of how long they have lived together, generally have no more rights than two strangers.

To be recognised, and have the rights of a married couple, you must either get married or enter into a civil partnership.


What if our relationship breaks down?

Because a cohabiting couple are not married, breaking up does not mean you go through anything resembling a divorce process. However, you can make arrangements to ensure that, in the unfortunate event of your relationship coming to an end, your jointly owned belongings/assets are handled and distributed fairly. An experienced team of solicitors, such as Hawkridge & Company, can help you create a cohabitation agreement which will outline how certain assets are treated should you separate. If parts of your joint assets entails land, a declaration of trust outlining how the trust asset should be treated, should you separate. No more worrying about who gets the house, or the dog. 

A cohabitation agreement is a legal document which is designed to make separation between cohabiting, unmarried couples as simple, amicable and straight forward as possible. Should you decide to part ways, a cohabitation agreement can be acted upon, fulfilling the terms you and your partner have previously agreed on.


What if my partner passes away?

If the unthinkable happens, and your partner passes away while you are cohabiting, what happens to assets and belongings depend on if your partner had a will. If your partner has written a will and you are a beneficiary, you will inherit assets as outlined in that will. Without a will, you will not automatically inherit anything, unless the property you cohabit is jointly owned. If you are cohabiting, and have no plans to marry in the future, it’s important to write a will and keep it up to date, to ensure that your wishes, with regards to your partner and your assets, are carried out.


What if we have children?

For unmarried couples, parental responsibility automatically falls to the mother. The father can share parental responsibility by registering as the father on the birth certificate.

If you separate, parental responsibility becomes less important. Instead, arrangements are made to suit the child’s best interests. In the best case scenario, decisions will be made between the separating couple. If a mutual agreement cannot be made, you can apply to the courts who will help to resolve the issue, keeping the child’s wellbeing at the heart of any decision.

If one partner passes away, then the courts will make arrangements to suit the best interests of the child. Guardianship does not automatically fall to the surviving partner. Should something happen to the mother, and the father is not listed on the birth certificate, it is not guaranteed that they will become the guardian. A will, and making these type of legal arrangements in advance, will ensure that your children are properly cared for in the event of a partner’s death.

If you need any legal advice on your common law rights, including financial considerations in the event of separation during cohabitation, the experienced team at Hawkridge & Company can assist. Operating across Medway, Gravesend, Sittingbourne and the surrounding areas. To find out how we can help you, simply contact us today.

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