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Common law myths – Your rights as an unmarried couple

In today’s society, it’s increasingly common for couples to live together as ‘common law’ spouses or co-habitees rather than getting married. The danger of this is that many co-habitees believe they have the same protection as a common law husband or wife, which simply isn’t true. In reality, you have very little protection as an unmarried couple should the relationship end or if one of you dies.

What are your rights if you break up?

If your relationship ends, an unmarried partner who has stayed home to care for children can’t make any claims for property, maintenance, or a pension share. They are able to make a claim for child maintenance through the Child Support Agency, and the court can order the non-resident parent to provide a home for the children to live in, which will revert back to them when the children finish school or university.

Unmarried fathers do not have parental responsibility, meaning they are not legally entitled to have a say in any decisions about their child’s life relating to home, health, education, etc. They can get parental responsibility by registering the birth of their child along with the child’s mother, or by obtaining a parental responsibility order or agreement.

What about rented or owned property?

When it comes to capital, each unmarried partner will keep what is in their name. If they own a property together which is not in joint names, the partner whose name is on the deeds and who pays the mortgage will normally keep the property. If you don’t have children together then you may be able to show you have a ‘beneficial interest’ in the property, if it is owned by your partner. In this case, the court may recognise contributions made towards the home, such as payments towards the mortgage.

If a beneficial interest can be proven, you may be given the right to live in the property, prevent your ex-partner from living there, or get a share if the home is sold. If you own the property jointly, you will have equal rights to stay. If you’re renting and your partner asks you to leave (and the tenancy is in their name), you will normally have no right to stay. You can prevent this from happening by ensuring you have a joint tenancy.

What happens if your partner dies?

If your partner dies and you are not married, neither of you will have access to the other’s bank account and you will not be entitled to access any of your partner’s funds until their estate is settled. Generally speaking, if you have a joint account and one partner dies, the other partner is entitled to the balance of the account, but the surviving partner has to be the joint signatory on the account.

If your partner dies without making provision for you (for example, in their will), there is a chance the survivor could claim and you may be entitled to the house you lived in together. It’s important to note that the law in Scotland is slightly different as unmarried, cohabiting couples are covered by the 2006 Act which provides protection should they break up or if one of them dies.

In order to protect yourself, you can formalise your status with your partner by drawing up a cohabitation agreement. Although it is not legally binding, courts will often recognise cohabitation agreements in court. Another option is to draw up separate legally enforceable agreements, for example, on how a jointly-owned house will be shared should you separate.

If you have any queries about your rights as an unmarried couple, talk to a solicitor who specialises in family law.