Family Law Misconceptions: Common Law

In the UK, there are currently 3.4 million couples co-habiting, many of whom hold the misconception that if they live together, they are classed as ‘Common Law’ partners and therefore have the same legal rights as if they were married or civil partners.

This is not the case.

In fact, despite commonly held beliefs, these couples do not benefit from any of the following:

• Automatic ‘spouses pension rights’ upon death if no nomination has been made
• Automatic rights to any assets held in the sole name of the other party, including property – this may mean that they do not even have the right to stay in the property if they are cohabiting with no agreement in place
• Inheritance under the intestacy rules (where no Will is in place)

Studies have shown that around 42% of cohabiting couples mistakenly believe that they share the same legal rights as married couples. This misconception can leave individuals particularly vulnerable in the event of relationship breakdown, death, or other unforeseen circumstances.

What protections can be achieved for those who do not wish to marry or enter a civil partnership?

Couples who do not wish to enter into a marriage or civil partnership can still obtain legal protection in the event that they split up – and this is provided through a co-habitation agreement.

A co-habitation agreement outlines who owns what assets and provides the opportunity to document how these assets would be distributed in the event of a relationship breakdown. It can also specify arrangements regarding the maintenance of children, joint finances and purchases.

This agreement does not however hold any influence over the intestacy rules which take effect when a person passes away without making a Will. If one of the partners involved in the cohabitation agreement passed away without leaving a Will, the cohabiting partner would not be classed as next of kin and would be unlikely to inherit. Therefore, cohabiting couples should also make a Will in line with their personal wishes.

It is important to note that a co-habitation agreement is only effective until a marriage or civil partnership is entered into. If a couple set out a cohabitation agreement when initially purchasing a property and then later get married, this would only remain effective until the date of marriage.

Nicholas Clough, Head of Divorce and Family Law, commented:

“For many couples, marriage and civil partnership are not options that they wish to explore. In these instances, particularly where children are involved, it is recommended that a co-habitation agreement and wills are explored to provide a level of legal standing and certainty”.

If you have any questions in relation to cohabitation agreements or family law, please contact a member of the Divorce and Family Law team on 03333 058375, or by email via family@psg-law.co.uk.