18.05.16

By Katherine Miller

Unfortunately, this is an urban myth; what people refer to as a common law marriage/common law wife or husband, doesn’t exist. Common law is not a legally recognised status meaning that living together ‘as husband and wife’ without getting married DOES NOT automatically give any rights to either person, in the same way as if you were married or in a civil partnership.

This is worrying when the Office for National Statistics show around 1 in 8 adults are living with someone but are choosing not to marry.

Here are some of the issues that unmarried couples who live together really do need to be aware of:

Inheritance

The laws which determine who inherits your estate (i.e. everything you own) if you don’t have a valid Will in place when you die are known as the Intestacy Rules.  These rules allow for your estate to pass to close family, such as children, parents or siblings, but does not include unmarried couples. This can cause serious consequences on the death of one partner in the relationship.  For example, if your partner owns the house you live in, but does not make a Will providing for you, you will not have the right to continue to live in the property.

Your only option would be to make a claim under the Inheritance (Provision for Family and Dependents) Act 1975 for the Court to decide what provision should be made for you but this will cost time and money at an extremely sad and stressful time.

Making Wills is extremely important for unmarried couples to ensure that their wishes are followed.

Tax

The transfers of assets, e.g. your home and money, between spouses and civil partners isn’t subject to Inheritance Tax and Capital Gains Tax. However, for unmarried couples there may be tax consequences, particularly on the death of the first partner.  Anything left to the surviving partner may be subject to Inheritance Tax at the rate of 40% on the value of those assets rather than exempt if they were married or in a civil partnership.

Children

This is a big issue for unmarried couples and it is important to understand the implications for your family. A mother automatically has parental responsibility for her child, as does a  father who is married to the mother on the date of birth of their child. For a married couple the legal responsibilities for the child are jointly held and both parents will make decisions relating to the child. It’s worth noting that even decisions relating to schooling, holidays etc. can only be made by a parent with parental responsibility.

However, if a father is not married to the mother of a child then he will only have automatic parental responsibility if the child was born after 1st December 2003 and he is named on the birth certificate. If the child was born before 1^st December 2003 or, after that date but he is not named on the birth certificate, then he will not have parental responsibility. This means the mother can make all decisions relating to the child without consulting the father. The father can obtain parental responsibility by agreement with the mother or by applying to the Court.

One or more of the points raised here will generally affect the majority of unmarried couples who are living together. The answer is not simply to say ‘let’s just get married then!’ it’s a case of putting the necessary legal plans in place to stop any issues arising from living together and not being married or in a civil partnership.

Last month our guest blogger Lisa Burton-Durham from Family Law Partners wrote an article discussing the issues about cohabiting couples breaking up. Click here to read this blog in full.

Please contact us to discuss your specific situation in more detail.