The ‘Common Law’ Couple

The term ‘common law’ couple has often been used to describe cohabiting couples. This term should be used carefully and more importantly it should not be confused with the rights of a married couple.

The rights of a married couple are often confused with the rights of couples who cohabit. The law is very different in regard to the rights of married couples and couples who are in cohabiting relationships, in particular when it comes to their financial matters.

There are an increasing number of couples who are choosing to enter into long term relationships but choose not to get married. In long term cohabiting relationships, more often than not, there will be a substantial financial connection between the parties. It is a common misconception that cohabiting couples will have the same rights available to them as a married couple would have, upon a separation.

If a married couple decide to separate, a divorce is the usual next step that is taken. In taking the step of starting a divorce, the parties financial matters are considered, with the aim of reaching a suitable agreement. The starting point would be for all assets, pensions, liabilities and all other relevant financial matters to be placed into a metaphorical pot and for an agreement to be reached as to how this should be divided. The way in which the pot is divided would be dependent on a number of factors, for example if there are children of the marriage, the discrepancy in the parties incomes and any significant disability one party may have. There is a general principle that the longer a couple have been married for, the closer they should be to an equal divide of all assets, regardless of the contributions made during the marriage.

If a cohabiting couple decide to separate, the rights available to each party differ significantly to the above. If one person stayed at home to look after any children of the relationship and the other party was the family income earner, there is no obligation for the income earner to financially support their ex-partner after they have separated. Furthermore, in such a scenario, there are no rights available for the stay at home parent to make a claim against their ex-partner’s pension. If a cohabiting couple live in a property which is in one person’s sole name, there is not an automatic assumption that a claim can be made against the property. In order to establish a claim, the person who is not named as a legal owner would need to establish a beneficial interest in the property by providing substantial evidence as to the contributions they have made. This can often be very difficult to establish.

The above provides some examples as to how married and unmarried couples rights differ significantly upon a separation. Furthermore, a married couple will remain married unless a divorce is commenced and progressed to a conclusion. A cohabiting couple do not require a formal process in order to separate from one another.

Written by Daren Vythilingum – Bates Wells & Braithwaite – 01787 880440

Rebecca Smith

Rebecca joined Bates Wells and Braithwaite in February 2019. Rebecca initially qualified as a Legal Executive and later as a Solicitor. She has over fifteen years’ experience in a wide range of family disputes having previously trained and worked as a family solicitor in Bury St Edmunds.

Rebecca approved by the Law Society Family Law Accreditation Scheme and is a member of Resolution.

In her spare time, Rebecca enjoys horse-riding, walking and cooking with family and friends.