The myth of common law marriage rights
Many couples prefer to live together in a committed relationship without getting married.
They assume that living together for a long time gives them the same types of legal right and responsibility to each other as marriage, such as entitlement to the other’s estate if he or she dies; a share of property on separation; and parental responsibility.
However, it doesn’t.
In the UK, the law does not recognise the concept common law marriage (with the exception of Scotland, where cohabiting couples have some basic rights if they separate).
For the most part, it treats you as two individuals – bank accounts, possessions and property held in one name belong to that person and assets held in joint names are held equally.
The misconception that there is common law marriage can be devastating if you separate or if one of you dies.
One person may find that his or her wealth is far less than thought; an assumed inheritance might be passed on to the deceased’s other family members; and both people may still have responsibilities for children – even if only one of them is a biological parent.
Living in a property does not give you rights to ownership or to stay.
If the property is rented
Only the people named in the tenancy agreement have the right to live there, and only during the tenancy.
If you move in with your partner into his or her rented home, then you have no rights to stay there if you break up. That applies even if you give your partner a contribution to the rent.
Additionally, your partner can ask you to move out at any time, without any notice period.
This situation changes if you become a tenant yourself.
You are likely to need the landlord’s permission to live at the property for a significant amount of time, and he or she is likely to ask you to become a tenant.
Most landlords insist that rent is paid jointly and severally – in other words that the tenants together are responsible for paying all the rent. If you are a tenant and this is the case, then you are still liable to pay the rent even if you move out. Only ending the tenancy ends your responsibility.
If one of you owns the property
The person who owns the property has the right to make any decision about who lives there or what happens to it.
He or she can ask you to move out at any time, or could sell it, or could change it in any way.
The exception is where there has been a prior agreement or understanding that the non-owner is entitled to a share of the value of the property, perhaps only in certain circumstances, or as a result of certain actions (such as contributing financially to a mortgage repayment or spending time renovating the property). The agreement ideally needs to be in writing so that neither party can later dispute it.
A court may also decide that a parent has a right to live with a child in a property owned by the other parent in order to ensure the welfare of the child.
If both of you own the property
If you both own the property, then you both have rights to live there. One of you cannot force the other to sell unless he or she applies to the court for an order.
The share of the property that you own will be determined by whether you own it as “joint tenants” or “tenants in common”. You can read a longer explanation of the difference between these terms, but in short, if you are joint tenants, you are usually entitled to receive half of the proceeds on sale, and if you are tenants in common then you receive whatever share you pre-agreed that you own. How much you contributed often has no influence on how much you own.
If you applied for a mortgage in both names, you will still be liable for repayments even if you do not live at the property. The same usually applies for household bills in joint names.
Cohabiting couples have no responsibility to support each other financially, or to support each other after separation.
If both people have legal responsibility for any children in the relationship, then one or both may have to make contributions to the other for the welfare of the children.
Ownership of possessions
Just as with ownership of a house or flat, ownership of smaller possessions is unaffected by whether you live together or not.
If you buy something with your own money, or if you owned something before the relationship started, it remains yours throughout the relationship and after separation.
If your partner gives you a gift, you own it. Sometimes, however, it is difficult to prove it was given as a gift.
If you buy something together, in most circumstances you would own it in shares to which you contributed to the price, unless you agree otherwise.
Money in joint bank accounts, and joint debts are owned equally. You are both equally responsible for repaying the amount owed, and have equal right to spend the jointly owned money.
If one of you dies without having made a will, then the rules of intestacy apply.
The consequence might be that the surviving partner receives very little from the estate.
Jointly owned assets automatically become the property of the other without being included in the estate. So if you own a house as joint tenants together, the other will automatically become the sole owner of it all.
However, savings and investments (including life insurance) in the name of the deceased might not pass to the partner.
A partner may be able to claim in court that he or she was a financial dependent and that the will should be varied in his or her favour. However, this is costly and may not succeed.
The best way to make sure your estate is passed on to the people you want to inherit it is to make a will.
Written Cohabitation Agreements
A written cohabitation agreement can help in a lot of ways to avoid problems on separation or death.
It is a formal legal agreement between both the partners that sets out the rights and responsibilities of each partner and who owns what. For example, an agreement might cover:
- how much each partner contributes to joint living costs
- which assets remain the property of one alone
- how ownership of other assets is divided
- draft arrangements for any children in the case of separation (although a court may vary these)
Thomas Taylor is a director of Net Lawman, a legal document template retailer. He writes about a variety of subjects relating to personal law, including living together, separation and divorce.
You can follow other articles on Twitter @NetLawman.