The harsh reality of cohabitation
If there is one single issue that is misunderstood about relationships, the one that every family lawyer has to deal with continually, it is the fallacy that cohabitation, what is unhelpfully known as “common law marriage”, gives either person automatic rights.
I am a member of Resolution, which represents 6,500 family practitioners, whose research shows an increase in the number of cases involving cohabiting couples. Frighteningly, some 98% of Resolution members report having worked with a couple who they say they could not help due to the lack of legal protection: I have been one of that 98%, on a number of occasions.
One potential client walked out of a first meeting with me when I told them that they had no claim they could make, telling me that I clearly knew nothing about the law: that is how deeply ingrained this myth is.
Here are just a few vital points of difference that anyone in a relationship must understand.
Cohabiting vs marriage: Six ways your rights differ
- If one cohabiting partner dies without leaving a will, the surviving partner will not automatically inherit anything – unless the couple jointly own property. A married partner would inherit all or some of the estate. This is why having an up to date will is so important.
- An unmarried partner who stays at home to care for children cannot make any claims in their own right for property, maintenance or pension-sharing. Written “living together” agreements can help to regulate arrangements between you.
- Cohabiting partners cannot access their partner’s bank account if they die – whereas married couples may be allowed to withdraw the balance providing the amount is small.
- An unmarried couple can separate without going to court, but married couples need to go to a court and get divorced to end the marriage formally. This may sound positively less formal, but it reflects the lack of any legal responsibilities for each other.
- Cohabiting couples are not legally obliged to support each other financially, but married partners have a legal duty to support each other.
- If you are the unmarried partner of a tenant, you have no rights to stay in the accommodation if you are asked to leave – but each married partner has the right to live in the “matrimonial home”.
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