Written by Fiona Snowdon

Head of Family at Simpson Millar

Fiona has over 10 years’ experience practising in the field of family law. She heads the family law team in London. Fiona specialises in matrimonial finance and private children matters, often with an international element. She has a strong reputation in the resolution of relationship breakdown from all types of families, including same-sex relationships, unmarried couples and inter-family relations where expertise in trust and property law is required.

A survey in 2013 found that more than two thirds of MPs agreed there was a mistaken belief in the existence of common law marriage amongst their constituents.

This belief is not hard to understand. Many people would think that a relationship based on commitment and love and during which property has been jointly acquired and children born would have similar legal consequences, whether or not the couple had gone through a ceremony of marriage.

The fact is though that entering into marriage or a civil partnership makes a huge legal difference which can lead to very different outcomes if, sadly, the relationship ends.

One partner may find they have no right to stay in the family home after years of living together because the family home was bought and paid for by the other partner alone.

Since more than 6 million people live together in the UK, this is a rather important issue.

The most important differences concern property rights although it is important to point out there are many differences which cannot all be listed in this short article.

Both married partners have a legal right to stay in the family home until either divorce or the court orders one of them to leave. This is true regardless of who is named as the legal owner.

Unmarried couples have no such rights. Legal and more crucially beneficial ownership (i.e. who is entitled to receive the sale proceeds) can have dramatic and painful consequences for those partners who believed and trusted they would be protected by the law. For example, one partner may find they have no right to stay in the family home after years of living together because the family home was bought and paid for by the other partner alone. This can be true even if the relationship has resulted in children. I once represented a lady who found herself in this position after 20 years, with a child and caring for two step-children.

Married couples have a legal duty to support each other, unmarried couples do not.

Married couples have a legal duty to support each other, unmarried couples do not. The vows one so often hears being recited at weddings, “in sickness and in health”, are not accidental but reflect the nature and obligations of the new legal relationship being created. This is why only married couples can claim spousal maintenance.

Upon divorce, the family court has discretion to divide and share marital property in the way it considers to be fair. The court has much more restricted powers if the couple are unmarried. The legal and beneficial ownership of property is often decisive and the court is powerless to alter outcomes in the context of “fairness” for the family.

The court has much more restricted powers if the couple are unmarried.

The only way in which this can be done is to join the property proceedings to an application for financial relief for a child(ren) of unmarried parents. Such a claim may enable the children to continue living in the family home for a defined period.

However, if there are no children and property ownership is in dispute, it may be necessary to navigate the complicated waters of trust law and land law principles. It is important to point out that unmarried partners may have valuable interests in property even if their name is not on the title deeds, but these interests would need to be establish by way of an express or implied trust which is complicated and always requires expert legal advice to be taken.

Put simply, there is no law for co-habitees.

The difference between marriage and living together continues after death. A surviving spouse will automatically inherit at least a part of their deceased spouse’s estate if their spouse has died without leaving a will. An unmarried partner may be able to go to court to claim property from the estate if they have not been left enough to live on but has no automatic rights of inheritance.

There are also important differences in how married and unmarried couples are treated by the Inland Revenue in relation to income and capital taxes and differences in how pension schemes benefit married and unmarried partners.

Therefore the important message is that marriage makes a significant legal difference and it therefore makes a great deal of sense to take legal advice before you start living together.

If nothing else, it is absolutely essential to spell out in writing the shares in which you and your partner own the family home if it is not clear from the title and any other properties you buy together. This must be done in a formal document at the time of purchase and is an issue which must be raised with your conveyancer whether or not they raise it with you.

It may also be a good idea to make a co-habitation agreement with your intended partner setting out who owns what and what is to happen if the relationship ends. Although there are some legal doubts about the enforceability of such agreements, they represent good evidence of intention, and therefore can avoid painful and expensive arguments if things do not turn out as you hope.

Finally, it is nearly always sensible to take legal advice from a specialist family lawyer if your relationship ends or is in serious difficulties. This is true whether or not you decide to get married.

 

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