As already mentioned there is a common misconception that couples who live together have the same rights as a married couple. There is no such thing in England and Wales as “common law husband” or “common law wife”, regardless of how long a couple have lived together, even if one party has financially supported the other.
Many people think if they have had a child together this changes things as they will acquire “rights”. This is also incorrect.
Where a cohabiting couple separate one partner is not (except in a limited number of cases) required to pay the other partner maintenance, even if they have stayed at home to care for the children, sacrificing their career and becoming dependent on their partner for financial support. They are treated as two separate individuals. A former partner would be required to pay child maintenance however, and this would usually be calculated in line with the Child Maintenance Service guidelines and based on the former partner’s gross income. Even if this was not sufficient so the parent caring for the children was left financially vulnerable, as a general rule an application could not be made to “top up” maintenance, as is potential when a marriage breaks down.
In limited circumstances it may be possible for the partner who cares for the children the majority of the time to make an application for additional financial provision in terms of lump sums or maintenance, but these are restricted and the costs of such proceedings can be considerable.
Couples who have children together, and cohabit, can enter into a Cohabitation Agreement to formalise the arrangements in the event of the relationship breaking down. While such agreements are not legally enforceable it could be helpful to address such issues within this form of Agreement to remind people what was agreed at the time and, hopefully, encourage former partners to work together for the sake of the children.
Resolution has decided to hold a Cohabitation Awareness Week from 27th November to 1st December 2017 to help dispel the myth of the “common law marriage” and alert people to the difference in legal rights between married and unmarried couples, and what steps an unmarried couple can take to record the interest and rights of each partner in the event of separation.
If you are planning to move in with your partner, are currently in a cohabiting relationship or if you were in a cohabitating relationship which has broken down, please contact us for advice about your situation. All of the family lawyers at Lightfoots LLP are members of Resolution.