What rights does a common law partner have?

What is a ‘common law partner’?

When people hear the term “common law partner” they assume it means the same as a common law spouse, where you live together but unmarried, akin to a husband and wife, possibly with or without children. Many people believe incorrectly that they are entitled to the same legal rights as a married couple is on divorce.

Is a common law partner legally recognised?

Although the term is used in everyday language, legally there is no recognition for a “common law partner/spouse”. Legal rights depend on whether you are married or are living together. Couples who live together unmarried are called “cohabitants” or “cohabitees”.

What happens if you separate from your partner and you live together?

Much depends on whether you are able to reach an amicable agreement following your separation surrounding things like finances, property interests and arrangements for any children you might have.

What if you’ve reached an agreement between you?

If you can reach agreement between yourselves then we can help formalise that in a separation agreement or Tomlin/consent order to ensure your agreement is legally binding on you both.

Property

What if we have a declaration of trust?

If you have a declaration of trust that sets out how the equity is to be divided between you in the event of relationship breakdown, then that is a clear indication of your intentions at the time to protect your respective interests. If you’re both happy to sell the house and have the proceeds split in line with the declaration then you won’t have an issue. You may still wish to formalise it with a separation agreement or Tomlin/consent order.

It’s only if one party is seeking to now challenge the declaration of trust or will not consent to a sale that you will need to issue court proceedings if agreement outside of court is not possible.

What if the house isn’t in my name?

If the house is in your partner’s sole name then you don’t have an automatic right to share in the property on separation. However, you might be able to prove that you have a beneficial interest (rather than legal interest) if you can demonstrate it was intended that you would both share the equity in the property — for example via financial contributions towards the property, such as paying the deposit or contributing towards the mortgage or renovation works. We would undertake an analysis of contributions made and whether there was an understanding or agreement in place between you, why contributions have been made and what claims can potentially be made as a result.

What if we cannot reach an agreement?

Alternative dispute resolution methods such as mediation can assist if you’re struggling to reach an agreement between yourselves. If that doesn’t work then your solicitor can help assist you with any negotiations by taking a detailed history from you and discussing suitable settlement proposals and putting those forward to your former partner. If that does not work then you would likely need to make an application for a declaration as to your respective interests or an order for sale under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA).

Finances

What happens to joint bank accounts?

The money in any joint accounts should be split between you, but any money in your sole accounts belongs to the person whose name is on the account, unless you reach an agreement that says otherwise.

Am I entitled to spousal maintenance?

No, as you’re not a spouse and there is no duty to financially provide for one another in the future.

Can I claim a share of their pension?

No, there is no right to make any claims against the assets of the other person which includes things like pension assets, even if it has been built up during your relationship.

Children

Who decides the arrangements for the children?

Anyone with parental responsibility for the children should decide what arrangements are best for the children, that includes major decisions like what school they will attend, where they will live, where they will holiday, what medical treatment they should receive, whether their name should be changed etc.

What if we’re agreed?

If you’re agreed and happy with how things are going then you might not need to do anything more, save on congratulating yourselves for being excellent co-parents to your children! You may decide to draw up a consent order of your agreement so that it becomes a legally binding court order on you both — this is a good idea if you think the other parent might resile from a previous agreement and you want them to be held to it or for things like relocation to set out clearly the terms of agreement surrounding the relocation, as if a parent moves and then changes the goalposts, it can be very difficult to sort after the event.

What if we’re not agreed?

If parents cannot reach agreement then mediation can be attempted and if that fails then there is the option to ask the court for assistance via Children Act Proceedings or attempt child arbitration (private proceedings where the hearings are overseen by an arbitrator).

What about child maintenance?

If you do have children together and you are the primary care giver, your ex-partner would be expected to pay child maintenance and, in certain circumstances, you may also have the right to claim for the financial needs of a child under Schedule 1 Children Act 1989, which can include periodical payments, a lump sum, settlement of property or a Mesher order, but not everyone will be entitled to make a claim.

How can a lawyer help?

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 and can avoid a lot of complications post break-up.

What is a cohabitation agreement?

This is a legally binding agreement that sets out what you want to happen during your relationship and in the event you separate, including what your rights and obligations to the other person will be and can protect any assets or possessions in your sole name that you did not or do not plan on sharing with your partner.

As well as including terms such a reconfirming how a property is to be held, it may record your agreement as to how sale proceeds are to be distributed or shares to be transferred in the event of a transfer. It might record who pays the mortgage, bills, renovations and utility bills whilst you’re living together. It might also stipulate the notice period given to the other co-owner before the house is sold, the terms for buying out your co-owner’s share, including stipulating how the shares should be valued if this cannot be agreed.

What is a declaration of trust?

This is a legal document that confirms the terms on which an asset like property, is held on trust and acts as evidence of an agreement. It would usually record the ownership of the property.

If you have a query about cohabitation, your rights as a cohabitant or would like to discuss drawing up a cohabitation agreement or declaration of trust, please get in touch with our expert family law team.