We’ve all heard the term ‘common law marriage/wife/husband’ and couples who have cohabited for many years generally assume that they are as protected as married couples in law.  As a Family Lawyer dealing with all aspects of family-related legal issues, I am often met with clients wanting to know what their ‘common-law’ rights are at the end of a relationship.

A lot of clients are astounded to realise that there is no thing as ‘common-law marriage’ and that there aren’t any specific laws in England or Wales offering protection to people based on the fact that they cohabited with their partner.

This may be quite surprising, given that the Office for National Statistics (ONS) found that as of August 2019, there were an estimated 3.4 million couples living together who weren’t married or in a civil partnership.  This situation gives rise to separating couples finding themselves in situations where they thought that they were protected with regards to financial issues when the truth is, in many scenarios, this simply isn’t the case.

Unmarried couples don’t have any claim in respect of the other’s assets (aside from a potential claim in respect of property).

This could mean that a person in a long-term relationship of many years may be reliant upon the private pension of the other in retirement age to support both of them, only to find that this potential income has disappeared.  Separating couples do not have the same right to bring any claim against the savings or investments held in the sole name of the other, nor have they any right to bring a claim for maintenance for themselves (this does not include claims for maintenance for children). 

All in all, separation following cohabitation can leave at least one of the parties in a financially vulnerable position.

Having said this, there are some forms of protection and recourse through the Courts in respect of property owned by the other party.  During the lifetime of the relationship, if a property is owned in the sole name of one party, then you can both enter into what is called a ‘Deed of Trust’, setting out any interest that the non-owner has in the property.  Post-separation, in the absence of any Deed of Trust, non-owner spouses are able to bring claims under the Trust of Lands (Appointment of Trustees) Act 1996 in order to assert the level of any interest that they have in the other’s home. 

Issues can also arise in respect of children: it is not commonly known that an unmarried mother is unable to name the father of her child when registering the child’s birth unless the father accompanies her.  Obviously this isn’t an issue if the parties are married, as the father will automatically have Parental Responsibility, but we are often instructed by fathers who didn’t attend at the registration of their child only to discover that they do not have Parental Responsibility following separation from their child’s mother.

Acquisition of Parental Responsibility can be rectified, however this must be by way of agreement or, if lack of agreement, by making an application to the Court.

At Jackson Lees, we represent couples in all kinds of relationship breakdowns, both in relation to divorce and cohabitation disputes.  Our experienced family lawyers can assist with preparation of Trust Deeds, property claims and children issues following your separation and will be empathetic to your particular personal situation. 

If you would like to talk to one of our specialist advisers, please call us free on 0151 625 9364, email family@jacksonlees.co.uk, request a callback at your convenience, or message us your enquiry