Cohabiting partners

A campaign has been launched to make cohabiting partners more aware of their rights.

With pensions, tax and benefits all affected by a couple's domestic situation, the Ministry of Justice wants to stress that they do not have the same rights as married couples if they separate or one of them dies.

Two million couples cohabit in England and Wales with one in four children being born to unmarried parents.

A survey found half of those questioned wrongly believed that common law marriage was a recognised legal status. Many also incorrectly believe that having children together leads to legal status.

Justice Minister Bridget Prentice said: "People living together should not assume that they will automatically have the same rights as married couples or civil partners."

"In court there is no such thing as a common law marriage."

Common law marriage has not been recognised in law since 1753.

Unless one partner in a cohabiting couple makes a will, the surviving partner might not inherit anything when their partner dies.

And if someone has no financial stake in a property, they have no right to it if the relationship breaks down, even if they have lived there for years.

Copyright © PA Business 2008

Common Law Marriage

Alison Fernandes, a family law expert from law firm Irwin Mitchell said: "One of the first things I was taught in law school was 'there was no such thing as common law marriage' yet I am repeatedly faced with clients who think they automatically have the same rights as a married couple after 2 years of living together. This is not the case.

"Government plans to give cohabiting couples similar, but not identical rights to married couples and civil partners have been shelved for the time being. This means cohabiting couples have to use existing laws to obtain rights. If there are children involved, a claim can be made under Schedule 1 of the Children Act 1989 to obtain financial assistance for things such as housing, school fees and lump sums of cash. However, a cohabitee will usually find that a house transferred to them for the benefit of a child has to be transferred back to their former cohabitee once the child has grown up.

"Child maintenance is generally dealt with by the Child Support Agency although the courts still have some power to deal with child maintenance in very limited circumstances. The child maintenance laws apply to couples whether they are married or not. But this is where any similarity ends.

"Married couples, or civil partners, can rely on the Matrimonial Causes Act 1973 to give courts powers to look into finances and decide how the couples income and assets should be divided on separation. There is no such law for cohabiting couples. A cohabitee may have a claim to an interest in the home they have lived in if owned by the other partner, but it depends on whether they can satisfy criteria laid down by Trust Law and that can be very complicated. There is certainly no claim a cohabitee can make for a share of the income or 'maintenance' for themselves, unlike married couples and civil partners.

"Pensions are another area where cohabiting couples lose out. A cohabitee is not treated the same as a spouse/civil partner and will not benefit from any widows pension benefits after the death of their partner. It is therefore essential that cohabiting couples make other provision for one another on death if that is what they wish to do. Making a Will is an absolute priority as a cohabitee will not be treated as next of kin for the purpose of inheritance. If a Will is not made, the dead partners estate will pass under Intestacy laws to their nearest relative in a specific order i.e., surviving children followed by surviving parents followed by surviving brothers and sisters.

"The cohabitee will not have an automatic claim under these laws and would have to make a claim against the estate as a dependant if they can show they were financially dependant on their dead partner. This often involves lengthy and very expensive court proceedings. Married couples/civil partners benefit from being top of the tree in Intestacy Law and they will usually benefit from all or the bulk of a dead spouses estate automatically. Having said that, it is generally a very good idea to have a Will for Inheritance Tax planning, if for no other reason."