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Cohabitation and Common Law Marriage

What is a common law marriage?

There is a common myth that if a couple live together for a set period of time then this will create a legal position known as a “common law marriage”. However, this is not the case. No such legal entity exists in England and Wales and a lengthily relationship, even where a couple live together, does not confer the same legal rights as those conferred by marriage or civil partnership. Unlike upon divorce or civil partnership dissolution, if cohabiting couples separate there is no automatic right to a division of assets or to future maintenance. This position is different if there are children and see below.

Are you automatically entitled to a share in your partner’s property upon separation?

No, this is also a common misconception stemming from the idea of a “common law marriage.” Another misconception is that there is a sharing entitlement created by cohabitation of a certain length of time (be it 2, 5, 7, 10 or more years). This does not exist in English law.  Only if a couple are married or in a civil partnership can they make a property claim upon separation, whatever the length of the relationship.

If unmarried or not in civil partnership, the right to a financial claim is dependent on the ownership of and contributions made to the property. There is no automatic right to a share in the solely owned property of the other person unless there has been a contribution to the property and an intention to share.

This is a complex area of English law and legal advice should be sought if you think you may have a claim to property held in the name of an ex-partner.

What should I do when buying a house with my partner?

The first tip is to always take separate independent legal advice.

When purchasing the property you and your partner should ideally state your intentions regarding the ownership of the property and how this is shared by way of a deed. However, any other written record could also be useful in future should the relationship break down.

You should also consider drawing up a Will to dictate what will happen to your shared property in the event of your death.

The property is in the sole name of my partner, what if we separate?

If the property is held in one partner’s sole name, the presumption is that the property will be retained by that owner.

However, there are still remedies under trust law for the “non-owner” who has contributed to the property and/or where one can evidence a joint intention that the “non-owner” is to have an interest in the property.

How can contributions and intentions alter the legal ownership?

Essentially, as above, the division of a property held by cohabitees is presumed to follow the legal ownership, i.e. to the single owner if held solely or by equal division if owned jointly.

However the presumptions can be rebutted by showing evidence of contrary intentions by the owners. Where there is a joint intention that a property should be held differently to the legal title and someone acts to their detriment in reliance on this intention, this can give rise to an automatic trust (known as a common intention constructive trust). An intention can be expressly given or inferred from the partners’ expectations arising from the relationship.

Financial contributions made may also alter the legal ownership and can alter the legal position and can rebut the above presumption.

Do we need to have agreed to this?

No, the court can imply a joint intention based on behaviour. Here again, the financial contributions may evidence a joint intention as can assurance made by one partner to the other’s reliance and detriment. This can include express promises or words or conduct that encouraged the other partner to believe that he or she will obtain an interest in the property.

What about our children? Are they protected by this?

Financial provision upon separation for the children of unmarried couples is dealt with in Schedule 1 of the Children Act 1989.

It is a financial claim to provide for the children of a relationship for income and capital based on the needs of the children, not the cohabitee.

What is the difference between a joint tenancy and a tenancy in common? Why do I need to decide and how do I do it?

This is one of the ways you can make intentions clear when buying a property and conveyancing solicitors will usually check your joint intentions as to the ownership at the time of purchase.

If a property is to be held as a Joint Tenancy then upon the death of one of the owners their share of property will transfer to the co-owner (irrespective of their Will). This creates a presumption upon separation that the property is owned in equal shares unless the contrary can be shown.

If a property is held as Tenancy in Common then upon the death of one of the owners their share of property will pass under a Will or intestacy. Both owners are treated as owning a a distinct share in the property. Again, upon separation the presumption will be that the property is owned in equal shares unless the contrary can be shown.

We legally own the property jointly, what if we separate?

If the property is owned jointly the division will be guided by this and the presumption will be for the property to be split equally.

However differing contributions and an expression of different intentions may alter outcome and the presumption can be rebutted. Legal advice should always be taken.

 

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