Myth of the common law marriage
A YouGov survey commissioned by us here at Mills & Reeve highlights that many people who are unmarried but live with their partners do not fully understand their legal positions and have no idea what rights they would have if they were to separate in due course.
More than 1,000 cohabiting people across England were surveyed. The results revealed:
- despite the law stating that people who live together do not have the same rights against each other as those who are married, more than a third (35 per cent) of those surveyed either believed they had the same rights or did not know;
- typically, when two people purchase a property, the value in the property (the equity) will usually be owned as "joint tenants". However, 35 per cent of those questioned did not know that where property is owned as joint tenants, the starting point is 50:50 regardless of how much each contributed to the purchase price. Almost 60 per cent were unaware that a joint tenant’s share will automatically pass to the surviving cohabitee regardless of their will;
- the intestacy rules do not make any provision for unmarried couples, so a cohabitee would not inherit their partner’s estate unless it is left to them in a will. However, despite this, 44 per cent of those questioned did not have a will so their partner would not inherit as they may assume in the event of their death; 73 per cent of those questioned were unaware of what types of financial support they would be entitled to from their partner for the benefit of their children.
Cohabiting couples might be the fastest growing family type in the UK but the survey confirmed that there is widely held belief that people who live together have rights against each other under the myth of the “common law marriage”. People think that they are protected when they own property and there is an assumption that the law provides a "fair remedy" if a cohabiting relationship ends. However, there is no such thing as a common law spouse (you are either legally married to your partner or you are not) and the outcome for those who are not married can often feel very unfair indeed. Under the current law, it is perfectly possible that one partner who has contributed significantly more than the other in terms of a deposit to purchase a property, monthly mortgage repayments and bills, must hand over 50 per cent of the property to the other party. It is also possible that one partner, whose name is not on the legal title but who has made substantial contributions, both financial and non-financial, including staying at home to bring up the children, ends up with nothing.
The law surrounding cohabitation can result in terribly unfair results and cases are often complex, lengthy and expensive.
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