Unmarried and unprotected?

Many unmarried couples still believe that if they live together for long enough, they will have the same rights and protection as married couples do. This is often known as the “common law marriage myth.”

A surprising number of people still think that even if they are not married they may have some protection as a common law wife or husband. This is simply not the case, and, to raise awareness Resolution (whose members are family lawyers committed to constructive, non-confrontational resolutions of family disputes) are running a co-habitation awareness week from 27th November until 1st December.

With an increasing number of couples choosing not to marry, it is important that couples consider how best to protect themselves and their children in the event of relationship breakdown.

Cohabiting couples should particularly think about the following:

Whether an unmarried father has parental responsibility for their child. This is now automatic as long as the father is on the birth certificate but that was not the case before 1st December 2003, when the father, would need to obtain this either by entering into a parental responsibility with the mother or obtaining a court order.

The family home. If property is owned by just one of the cohabitees, then it can be difficult for the other to prove that they have a financial interest in the property. Where property is owned jointly, there may be a dispute about each parties’ share. For example, some couples are clear that the property should be split equally and this may be reflected in the conveyancing documents. However, it is often the case that one person puts down a significant deposit and expects to get that back upon separation. This can lead to disputes and lengthy negotiations through solicitors or even end up in expensive court proceedings if the relationship breaks down.

It comes as a surprise to some that they would not be entitled to claim maintenance from an ex-partner, as a spouse would be able to. Fortunately when there are children the law at least does provide that child maintenance is payable.

There is also no right to make a claim in respect of the other person’s pension upon separation.

Many cohabitees still believe that if their partner were to die without a Will they would automatically inherit their estate as a common law wife or husband. This is not the case and the estates would pass to the couples’ children or the cohabitee’s next of kin. It is very important that cohabitees ensure that they have up to date Wills so that they can leave their property to their partner (or beneficiary of their choice.)

Resolution are campaigning for changes in the law to provide some protection to cohabitees. However until that change comes it is important that cohabitees take action to protect themselves upon relationship breakdown.

It is a good idea to have a cohabitation agreement, which is an agreement setting out how property and assets will be divided in the event that the relationship breaks down. Whilst many people optimistically hope that such an agreement would not be necessary, it can save a lot of animosity and legal fees in the future. It also allows parties to move on more quickly and to concentrate on helping their children deal with the emotional issues arising from the split.