Cohabitation and Marriage: some common misconceptions.

We have all heard of the term ‘common law marriage’ but what many do not realise is that this has no legal recognition.

Let’s look at some important differences between a married couple and a couple who are cohabiting:

 

i.     Banking

Cohabitation: If you and your partner have two bank accounts, these remain exclusive to each of you, neither having any rights to the other’s account. If one of you dies, the money will remain the property of the deceased until the estate is settled.

If you have a joint account, both of you have access to it regardless of who pays money into it. If one of you dies, the other will continue to have access to it unless it can be argued that you do not have a right to it. For example, you never paid money into the account.

Marriage: if a married couple have separate bank accounts, the bank may allow a surviving partner to access the deceased’s account as long as the amount is small.

If a married couple have a joint account, this will immediately pass to the surviving partner upon death of the other. This is regardless of who paid money into the account.

 

ii.     Housing

Cohabitation: a property may be owned in one name or jointly. If it is owned jointly, both of you have a right to remain in the home.

If it is in one name, contrary to what many think, the other does not necessarily have any rights over the property. If you have children, the court may decide that it is in the childrens’ interests to transfer the property to you for a limited time. (Usually until the children are 18 years old).

If you are not joint owners and there are no children, you will only be able to claim a right in the property if you can show you have a ‘beneficial interest’, for example you have made contributions towards the cost of the property.

Marriage: if you split you will both have a right to remain in the property. This is known as your ‘home rights’. You will have a right to remain in the home until the court orders otherwise.

Regardless of whether you are a sole or joint owner of the home your partner will be unable to sell it without your agreement.  (You should however be aware that in order for this to apply, if your partner is the sole owner, you will have to register your home rights. This can be done at any time and information about registering your home rights can be found on the Land Registry website at: www.landregistry.gov.uk).

Housing is a particularly complex area of the law and if you have any concerns you should seek professional legal advice on this matter.

 

iii.     Children

Cohabitation: If you are an unmarried mother, you have sole responsibility for a child unless:

·     you register or re-register the birth of your child with the child’s father or

·     you make a formal agreement with the father of the child and register it at a court. This is known as a parental responsibility agreement, or

·     there is a court order in favour of the father.

If you are an unmarried father, you are not automatically assumed to be the child’s father. However, you can get legal responsibility (known as parental responsibility) for your child by:

·     registering (or re-registering) the birth of your child together with the child’s mother;

·     making a parental responsibility agreement with the mother and registering it at court;

·     obtaining a court order;

·     becoming the child’s guardian (which would only take effect on the mother’s death); or

·     marrying the mother

 

Marriage: every child born to a married woman is presumed to be the child of her husband unless there is evidence to the contrary. A husband has the right to enter his name on the birth certificate and this is regardless of whether or not he is actually the father.

Both parents have parental responsibility for the child until he/she attains the age of 18. This remains the case even if the parents separate or divorce