What is a “common law partner” entitled to in the UK?
In the UK, the term “common law partner” is often used to describe cohabiting couples who are not married or in a civil partnership. In the eyes of the law however, a “common law partner” is a colloquial term only and has no legal rights. The result is that unmarried couples will not have the same rights as married couples, irrespective of the length of time they have been in a relationship or whether or not they have children. This blog will investigate what you may be entitled to as an unmarried partner.
When it comes to property and the ownership of property by cohabiting couples, this will come under the jurisdiction of The Trusts of Land and Appointment of Trustees Act 1996 or more commonly known as ‘TOLATA’. TOLATA allows the Court to make decisions relating to ownership of property, interest in property, and in particular whether there should be a sale of the property and who may remain residing at the property.
The ownership of property can be a particularly thorny issue when unmarried couples separate, and there can be a difference between the legal ownership of the property and the parties’ respective beneficial interests. It may be possible to establish a beneficial interest in the property if you can prove it was intended that you would have a share of the property, even if the property is not legally owned by both parties. This can often be demonstrated through financial contributions made towards the property, such as mortgage payments or significant improvements to the home. This area of law is complex however and obtaining specialist advice as early as possible is recommended.
In terms of the arrangements for children, the law recognises that a child should have the involvement of both of their parents in their lives irrespective of whether or not their parents are married, so long as it furthers their welfare.
The law under the Children Act 1989 in relation to child arrangements broadly applies to married and unmarried couples equally, although unmarried fathers in particularly should be aware of the fact that they will not automatically hold parental responsibility for their children. Mother’s automatically have parental responsibility, while unmarried fathers must either be named on the birth certificate, obtain a court order, or enter into a parental responsibility agreement with the mother’s consent
Unmarried couple have no entitlement to claim financial support from each other on separation for themselves, however they are entitled to payments for the benefit of the children. The payment of child maintenance for the benefit of the child remains and in the absence of an agreement between parents, a claim can be made to the Child Maintenance Service for a child maintenance calculation to be undertaken. Additionally, a claim for financial support under Schedule 1 of the Children Act 1989 can also be considered which can include periodical payments, a lump sum, or settlement of a property, however it is important to note that not everyone will be entitled to make a claim.
As a cohabiting couple, you’re not entitled to any of your partner’s state pension. When it comes to your partner’s occupational pension, you don’t have a right to claim on separation. However, an unmarried partner can choose who will receive the pension pot if they die before it is utilised. It’s also possible for the pension holder to arrange a ‘survivor pension’ for an unmarried partner who is financially dependent.
As there is no formal legal relationship between the parties, it follows that there is no legal right for cohabiting partners to inherit the other’s estate if one partner were to die intestate (without a will). This is irrespective of whether they have children or the length of time they’ve been in a relationship. A surviving partner may be able to legally claim financial assistance, if they haven’t been factored into the deceased’s will and it is recommended that you seek specialist advice from a private client lawyer on what is appropriate for your personal circumstances.
Having legal paperwork drawn up before you start living together or whilst you are living together can assist in setting out the arrangements you would want in the event of relationship breakdown. Whilst this can be a difficult conversation to broach when you are in a happy and loving relationship, having these conversations can avoid a considerable number of complications and costs, post break-up.
A Declaration of Trust is a formal document that specifies how property or other assets are owned between cohabiting partners. A declaration can assist with disputes over ownership. If a Declaration of Trust is contested or if disagreements arise about its terms, legal proceedings may be necessary to resolve the matter.
A Declaration of Trust can be complemented by other agreements, such as a separation agreement, to ensure that all aspects of property and asset distribution are legally binding and enforceable. A Declaration of Trust can help clarify and formalise the financial and property arrangements between partners.
To safeguard your interests, cohabiting partners can establish a cohabitation agreement. This clearly outlines each partner’s rights and responsibilities, both during the relationship and in the event of separation, and whilst there remains legal debate as to their enforceability, having a well-considered cohabitation agreement will provide evidence of ‘intention’ with the hope that any future litigation can be avoided.
A cohabitation agreement can specify:
By creating a comprehensive cohabitation agreement, you will each have a clear framework for managing your shared assets and financial responsibilities and should help in the event of a future relationship breakdown or dispute
To avoid future disputes, legal documents such as a declaration of trust or a cohabitation agreement should be in place to clearly outline ownership rights and intentions. If you are an unmarried couple and planning on moving in together, we can help you draw up a cohabitation agreement that will give you legal protection over your property in the event of a separation. Do not count on having ‘common law’ partner rights when separating. Having this agreement will mean that each of your ownership rights are clearly stated before you move in together, and any later stress can be removed.
Darcy Gee is a Paralegal in our Horsham team.
To speak to one of our specialist Cohabitation Solicitors please contact us.