In the UK, the concept of the “common law partner” is a myth in legal terms.
An unmarried couple living together do not share the same legal status as a married couple or a couple in a civil partnership. This is irrespective of how long the couple has been cohabiting for.
The legal rights of unmarried couples or those who have not entered into a civil partnership differ considerably to married couples following significant life events such as following relationship breakdown, on the death of a partner and in relation to parental responsibility.
Common law partner: What are my property rights on separation?
Many common law partners who have cohabited for a number of years are mistakenly of the view that if their relationship comes to an end they will automatically have rights over the property in which they live, regardless of ownership or whose name the tenancy agreement is in.
The legal position is that if you jointly own or rent property, you and your partner will have equal rights to stay in that property. Unfortunately, if your partner is the sole legal owner or tenant, you will have no automatic rights to the property if your partner asks you to leave.
Where you are not included on the legal title to your home, you may be able to claim a beneficial interest in the property if you can evidence financial contributions, for example if you have a deed of trust stating ownership of a specific share of the property.
In some cases a court may make a specific order if for example it is in the best interests of the children to ensure continued residence in the family home or where there are issues of domestic violence. However, this is not legally guaranteed and can be costly and time-consuming to pursue.
For the married couple, or those in a civil partnership, the rules are again very different. Each married or civil partner has the right to remain in the matrimonial home until and unless the court orders otherwise. This is regardless of whose name the property is in. Further, on separation or divorce, a property or tenancy can be transferred into the name of either party.
Am I entitled to financial support on separation?
Many common law partners living together are also mistakenly of the view that if their relationship comes to an end they will be financially obligated to, or able to rely financially on, the other.
Under current law, there is no legal duty on cohabiting couples to support each other financially, either during the course of their relationship or otherwise. Whilst the law makes separate provision for children, if you are an unmarried, common law partner who stays at home to care for children you will be unable to make any claims in your own right for property, maintenance or pension-sharing in the event that your relationship breaks down.
For the married couple, or those in a civil partnership, the rules are different. A spouse or civil partner has a legal duty to support the other during the course of their marriage or partnership. Further, the court may order that one partner must continue to support the other following a separation, divorce or dissolution of the civil partnership.
What are inheritance rights as a common law partner?
Many common law partners living together are mistakenly of the view that if the other dies they will automatically inherit the home, and any other property, that they share together or that their deceased partner owned.
Unfortunately, the inheritance rights of unmarried couples, or those who are not in a civil partnership, do not work in this way. Specific provisions would need to be made in a valid will for each partner, stating how the estate, including any property, is to be shared between intended beneficiaries, such as the surviving partner.
If however you are cohabiting and one of you passes away without leaving a will, the surviving partner will have no automatic right to inherit their partner’s share of the home unless your home is owned as joint tenants.
If the property is held as tenants in common, rather than as joint tenants, the share belonging to the deceased partner will be dealt with under the rules of intestacy. If you are unmarried and die without a valid will, known as dying “intestate”, any children or other close relatives will inherit your estate.
For the married couple, or those in a civil partnership, the rules are much more favourable. If a spouse or civil partner dies intestate, i.e. without a will, the surviving partner will automatically be entitled to inherit from the deceased’s estate under the intestacy rules.
Do I have parental responsibility as a common law partner?
Parental responsibility relates to the right to have a say in important decisions about your child’s life, such as where they live, their health and education.
For the biological mother, irrespective of whether she is married or in a civil partnership, she will automatically have parental responsibility over her child.
However, a father who is not married to the mother of the child is not granted the same automatic parental rights unless their name appears on the child’s birth certificate.
For the married couple, or those in a civil partnership, the rules are more favourable than for common law partners. Any father who was married to the mother of the child when the child was born will have parental responsibility. A second female partner will also have parental responsibility if she was in a civil partnership at the time of donor insemination or fertility treatment or, alternatively, she is legally classed as the child’s parent and has been formally registered as such.
Protecting and enforcing your rights as a common law partner
There may be some practical benefits to the common law arrangement, not least in the flexibility afforded to you in the event that you wish to go your separate ways.
Although the court retains the power to make orders relating to the custody and care of any children, common law partners will not be faced with the formalities of filing for divorce or the need for court intervention to simply bring their relationship to an end.
That said, as a common law partner, you enjoy far less legal and financial protection than if you were married or in a civil partnership, irrespective of how long you have lived together, and whether or not you have children.
A legal adviser can provide you with expert advice on your rights as a common law partner specific to your particular circumstances. Moreover, your adviser can help you to prepare for the worst, for example, if you or your partner dies, or your relationship comes to an end.
This can include making provision in a written will for you or your common law partner; drawing up a cohabitation agreement to make financial provision for the other, or to resolve any potential dispute as to who should remain in the property that you live in together in the event that you separate; transferring any sole tenancy into a joint tenancy to give you each equal rights and responsibilities; and exploring different ways in which you can obtain parental responsibility over your children.
Why legal advice can help
The law relating to the rights of unmarried couples on death, or those not in a civil partnership, can have significant financial consequences for the surviving partner. Similarly, the law relating to the rights of common law partners on separation can leave you with an uncertain financial future.
It is therefore important for common law partners to take advice on their situation and to consider the legal and financial consequences for each other in the event of death or separation. It is also important for unmarried fathers or second female partners to consider their rights over their children, particularly if you want a say in important decisions about how your children are raised.