Common Law Marriage

Rights of unmarried couples on death or break up

Over the past 20 years cohabiting couples have become the fastest growing family type in the UK, with some 3.3 million couples now choosing to live together without getting married.

Many people in this situation mistakenly believe that if they split up or their partner dies the law will recognise their relationship and give them similar rights to a married couple or those in a civil partnership.  As Pardeep Bancil, private client solicitor with Dexter Montague LLP in Reading explains, unfortunately this is not the case.


What are my rights if I separate from my partner?

If you separate from your partner you will have very few rights unless any money or property is in joint names or you have entered into a cohabitation agreement which sets out the financial arrangements in the event you decide to go your separate ways.

Jointly owned assets will usually be split between you 50/50 or in accordance with any agreement you have made.  Money or property in your partner’s sole name will be presumed to belong to them alone, unless you can prove otherwise.

You have no right to claim financial support for yourself, although you do have the right to claim support for any dependent children.


What about our home?

What happens to your home will depend on the circumstances, including:

• whether the property is owned or rented;
• whose name is on the ownership papers or tenancy agreement;
• if you and your partner own the property together, whether you own it as joint tenants or tenants in common;
  • who has been paying the mortgage or rent and any other household expenses; and
  • whether there is a mortgage or any other debt secured against the property.

If you and your partner bought your house or flat together it is likely that you will both be entitled to share in any money made from its sale.  However, if the house is in your partner’s name only, you will have no automatic right to share in the sale proceeds, although if you contributed to the purchase price or mortgage payments, or have added value in some other way, it may be possible to ask a court to recognise this and award you a share, but this is costly and not to be relied upon.

If you rent your home, you may not have an automatic right to stay if you separate from your partner.  If the tenancy is in your partner’s sole name, then you may have to apply to the court for an occupation order to be permitted to remain in the property – particularly if you have young children – if your partner will not agree for you to stay.  It is important that you seek legal advice as soon as possible; our family law department will be able to advise you what action you may be able to take.

If the tenancy is in your sole name, or jointly with your partner, you are entitled to stay.  If your partner is not willing to leave the property, you may need to ask the court for an occupation order to ask them to leave.

If you are faced with eviction from the property, because of rent or mortgage arrears, it is important to seek legal advice immediately.  You cannot be evicted without an order of the court, however, it may be difficult for you to delay or stop an eviction in these circumstances, even if you have young children.


My partner died without a will – am I entitled to receive anything?

When someone dies without leaving a will there are rules in place to determine who should get what – Intestacy Rules - and unfortunately these do not make any provision for an unmarried surviving partner to receive anything.  The only way provision might be possible is if you can convince a court that you were financially dependent on your partner at the time of their death and the court agrees that, in those circumstances, some sort of provision should have been made for you.

Where you and your former partner owned property jointly, or had money together in a joint account, you will be entitled to inherit this.


Can we avoid problems?

The best thing you can do to protect yourself is to enter a cohabitation agreement and make a Will.   If you would like to discuss preparing a Will please contact:

Pardeep Bancil, solicitor
pardeep.bancil@dextermontague.co.uk
main office: 0118 939 3999

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.