The myth of a Common Law Spouse
At last count, there were 3.4million cohabiting families in the UK, making up 17.9% of all families. Recent figures released by NatCen revealed that 46% of British adults mistakenly believe in common law marriage. This is unsurprising when even price comparison websites offer ‘common law spouse’ as an option on their drop-down lists for relationship status.
The reality is that cohabitation gives no general legal status to a couple - unlike marriage and civil partnership from which legal rights and responsibilities flow.
What are the main differences between cohabitants and spouses?
1. Property rights
On divorce, the court’s approach on the division of assets will be that the starting point is equality, unless there is reason to depart from equality. All properties owned by the parties will be considered, not just the family home.
For cohabitants, property entitlement is governed by trust law. If the correct procedure is adopted when the property was purchased, the cohabitant’s intentions as to ownership should be clear from the purchase deed or declaration of trust.
Couples purchasing a property together, in joint names, can either own the property as joint tenants or tenants-in-common. When owned as joint tenants, the property will be owned in equal shares and passed to the other on death. When owned as tenants in common, it will be possible to record the shares in which the property is owned in a declaration of trust. This differentiation is common when one person is making a larger contribution to the deposit or purchase price.
The position can be more difficult when one person moves into a property that is already owned by their partner. Cohabitants who live in a property solely owned by the other are particularly vulnerable as they may struggle to establish a beneficial interest in that property should they separate.
A spouse on divorce will be able to make a claim for spousal maintenance (provided they can demonstrate this is required, with reference to their “needs”). If the married couple have children, then the spouse would also have a separate entitlement to child maintenance.
When cohabiting couples separate, neither party has any right to claim maintenance from the other. Maintenance can only be claimed for any children of the relationship.
If a married person dies without having made a will, s/he can rest fairly well knowing that the surviving spouse will inherit their estate under the rules of intestacy. The surviving spouse will also benefit from a tax allowance.
Should a married person not make sufficient provision for a surviving spouse in their will, a claim can be made as a dependent under the Inheritance Act 1975. One of the factors the court will consider is what the spouse would have received on divorce instead of in death.
Surviving cohabitants have no automatic right to inherit their partner’s estate. Where a couple live together and one of them dies without making a will, the survivor has no automatic right under intestacy rules to inherit any of his or her partner’s estate. It will not matter how long they lived together or whether they had children together. If a property is owned as joint tenants then the deceased’s “share” in the property should pass immediately to the other owner under the rules of ‘survivorship’. However, tenants in common do not have the same protection and there is a risk that the deceased partner’s share in the property may pass to someone else on death.
Even if a cohabitant makes a claim as a dependent under the Inheritance Act 1975, the court will not treat them the same as a spouse.
On divorce, the court has the power to make a pension sharing order if appropriate in the case.
On death, a surviving spouse may be entitled to the deceased spouse’s contributions for the purposes of state pensions. They may also be entitled to a widow/er’s pension through an occupational/private pension scheme, depending on the trust scheme rules.
The same is not true for cohabitants. On separation, cohabitants do not have any claim over their partner’s pension – the court would not make a pension sharing order.
A surviving cohabitant would not be entitled to their former partner’s contributions for the purposes of state pensions. It may be possible for persons with an occupational or personal pension to leave some pension benefits to a partner rather than spouse- but it will very much depend on the circumstances at the time of death, the type of pension and the scheme rules.
Cohabiting couples are treated as unconnected persons for taxation purposes and so cannot benefit from tax reliefs and exemptions in the taxation system available for spouses and civil partners.
6. Birth registration and parental responsibility
If the parents are married at the time of the child’s birth, the mother and the father will acquire parental responsibility and will both be named on the child’s birth certificate. The same is not true for cohabitant parents: an unmarried mother will have sole parental responsibility unless the father acquires parental responsibility. The unmarried father would need to make sure that his name was recorded on the birth certificate to automatically acquire parental responsibility or he would need separately to apply to the court.
*[Note that there is provision within the Human Fertilisation and Embryology Act 2008 (HFEA) for same sex spouses to both obtain parental responsibility].
What legal claims are available to cohabitants?
Trusts of Land and Appointment of Trustees Act 1996 (TOLATA 1996)
Disputes between cohabitants over property ownership are determined in accordance with the law of trusts. If the correct procedure has been followed, the intentions of the cohabitants will be clearly recorded in the purchase deed or declaration of trust.
If the property is owned as tenants in common and there is no declaration of trust, it will be presumed that the property is owned in joint shares unless the contrary can be proved. Where properties are owned in joint names, the onus will be on the party who wishes to show that the beneficial interest is divided other than equally.
Disputes regarding beneficial interests in property often arise when the property is solely owned by one cohabitant. If an express trust has been declared, the sole legal owner may hold the non-legal owner’s beneficial interest in the property on trust. If not, and the non-legal owner wishes to claim an interest in the property, then they must establish that they have a beneficial interest in that property under trust law. This is a complex area and legal advice should always be taken.
Schedule 1 claims
The ways of applying for maintenance and property orders for the benefit of the children are more limited for non-married couples. Child maintenance claims are made through the child support agency (‘CSA’) or under Schedule 1 of the Children Act 1989 (most typically when a ‘top-up award’ is sought after a maximum assessment has been returned by the CSA).
Schedule 1 of the Children Act 1989 also enables unmarried parents to make an application for a lump sum (or behalf of or direct for a child) and property orders. Unmarried parents should, however, be aware that any property purchased is likely only to be on ‘loan’ during the child’s minority and that once the child reaches the later of the age of 18 or finishes secondary/tertiary education, the property will return to the purchasing parent.
How do cohabitants protect their legal position?
If you are entering a cohabiting relationship, you should think about the following:
- Before moving in together, consider entering into a cohabitation agreement. These agreement s can set out what should happen on separation and can also regulate things such as who would be responsible for the payment of certain bills etc.
- Take legal advice when purchasing a property and ensure that the land registry deed properly records the way you want to own the property. Speak to the conveyancer about the differences between joint tenants and tenants in common.
- Ensure your will is up to date and reflects your wishes on death.
- Fathers should ensure that they are named on the birth certificate
There is increasing momentum for the law to give more recognition to cohabiting partners. Resolution’s ‘Fairer Families’ campaign urges the government to recognise cohabiting partners and give some weight to the myth that is the common law marriage. In November 2019, Resolution’s Awareness Week focused on the need for legal reform to provide at least basic rights for cohabiting couples who separate.
Couples should ensure that they take legal advice as their relationship evolves and particularly when deciding to move in together or purchase properties and when a child is born.