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Don't be fooled by the myth of 'common law marriage'

19 October 2012

Many people continue to believe that common law marriage exists, reinforcing the myth that cohabiting couples enjoy the same legal rights as married couples.

This misconception is dangerous because it could leave adults and children in a very vulnerable legal position if a relationship breaks down, warns Susi Gillespie, a senior solicitor with leading law firm Furley Page.

Susi, who has herself just returned to work from maternity leave, says that a recent report based on data from the Office for National Statistics and online consumer research shows that the percentage of unmarried couples with dependant children is 38% - exactly the same ratio as married couples with dependent children.

From 2001 to 2011, the number of cohabiting families with children rose by 292,000, while the number of married couples with children fell by 319,000. This change is attributed to the fact that 52% of adults surveyed believed that being in a committed relationship was more important than being married.

Susi says: “There is no longer a stigma attached to cohabiting and starting a family outside of marriage. However, despite the Law Commission making recommendations in 2007 that the rights of cohabiting partners upon separation should be made law, the Government has failed to act.”

Susi points out that unmarried couples who separate often fail to realise that the legal position for them is very different from those facing divorce. Many people still believe they have ‘common law rights as a spouse’ but there is no such term in law. The law is far more complicated for unmarried couples who separate than for those who are married. The main differences are:

  • As far as your children are concerned, the matter of parental responsibility can be a hurdle some fathers have to overcome before they apply for contact with their children. For an unmarried father, if his child was born before December 2003 or his name is not registered on his child’s birth certificate, he will not have parental responsibility. If you are married a father is automatically accorded this.
  • If you are unmarried, maintenance is limited to child maintenance through the Child Support Agency; you are not entitled to any maintenance in your own right.
  • Unless you can show that you have made a contribution towards your partner’s property then, in nearly every case, you are not entitled to a share of it. The same position applies towards a business.
  • The court cannot divide a pension unless you are married. 

Susi says that it is important for unmarried couples who are separated to get legal advice. “Even if your partner is the sole owner of the house, you and the children may be entitled to live in it until the children are grown up.

“You may also be entitled to capital payment, above and beyond child support, in order to meet expenses incurred on behalf of the children, for example the cost of running a car.

“In addition to advising parties post separation, it’s possible to draft a ‘cohabitation agreement’ which addresses the issues relating to the children and the finances at the outset. These have to be reviewed regularly to reflect changes in a family’s life and, while they aren’t considered binding by a court except in relation to property, they can be considered as persuasive and certainly provide the court with a snapshot of the parties’ original intentions before any conflict arose,” adds Susi. 

For further information contact Susi Gillespie on 01634 828277. Susi is based in Chatham but is able to provide face-to-face advice at meetings organised at any other Furley Page office.
 

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