“I’ve lived with my partner for over 5 years so now we’re common law spouses?”
Many people have the misconception that there is a legal standing of ‘common law spouse’ after living with their partner for a certain length of time. This is incorrect, you may be considered to be the cohabitee of your partner but there is no such thing as ‘common law marriage’ or a ‘common law spouse’.
Regardless of the length of time you may have lived with your significant other, the only legally binding forms of relationship are marriage and civil partnership (civil partnership still being restricted to homosexual couples only).
The term cohabitees has been defined in different pieces of legislation, by way of example:
- ‘two people who are not married to, or civil partners of, each other but are living together as a married couple’
- ‘two persons who are neither married to each other nor civil partners of each other but are living together as husband and wife or as if they were civil partners’
- ‘two people (whether of different sexes or the same sex) living as partners in an enduring family relationship’
Furthermore, there have been attempts by government to legislate on cohabitation and allow applications for financial provision on the relationship breakdown of cohabitees, but these have not yet been successful.
At present, cohabitees do not have the same rights and obligations toward one-another as spouses or civil partners:
| Marriage/ Civil Partnership | Cohabitation |
|---|---|
| Each party to marriage/civil partnership has an obligation to provide financially for that party in the marriage/civil partnership – both during the marriage/civil partnership and on termination. | Couples in cohabiting relationships do not have this obligation to provide financially for one another. |
| A party to a marriage/civil partnership may seek financial assistance from their spouse/civil partner for the duration of their lifetime, even if the marriage/civil partnership has ended. | This is not available to cohabitees. |
| A party to a marriage/civil partnership gains a specific right of occupation on marriage/civil partnership and the right not to be evicted from the family home these are known as home rights and determine the type of occupation order that may be available to a spouse/civil partner if the relationship breaks down. | Cohabitees do not have the same specific right of occupation as married couples/those in civil partnerships. It may be possible for cohabitees to obtain an occupation order but different criteria apply. |
| A father married to a mother gains automatic parental responsibility for any child of the mother. A civil partner will acquire parental responsibility for the child of the other civil partner. | An unmarried father only obtains parental responsibility by order of the court or by agreement with the mother unless the child is born after 1 December 2003 and the father is named on the birth certificate – under these circumstances the father will automatically have parental responsibility for that child. |
| Spouses/civil partners received favourable tax treatment such a tax exemption on gifts between spouses and certain exemptions on inheritance tax should their spouse/civil partner die. | Cohabitees do not receive any form of favourable tax treatment. |
| Should a spouse/civil partner wish to make an application for financial provision from the estate of their deceased spouse/civil partner they are treated more favourably in terms of the factors to which the court must have regard in determining that application. | Any person who before the death of another person was being maintained by that other person may make an application for financial provision from the estate of the deceased but must comply with a more stringent criteria. |
However, the Children Act does not consider whether a couple is married or unmarried and it is possible, as a cohabitee, to make a claim on behalf of your child using the Children Act.
Furthermore, if you have cohabited and jointly owned property with your former cohabitee, you will have claim on that property.
It is important to consider the legal implications or lack thereof when deciding whether to not to cohabit with your significant other.
We’re here to help, if you require further information or advice in respect of this or any other family matter, please contact us on 01392 421777. Remember, your first appointment is always free.
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