The Trap of Common-Law Marriage
Posted on 23rd April 2018 at 13:53
In figures released in November 2017 the Family-aimed legal group, Resolution, stated that the numbers of people in the UK co-habiting had doubled from 1.5 million in 1996 to over 3.3 million in 2017; a number which has surely risen since that date. Resolution also surveyed a group of 2,000 individuals, which showed results of a huge misunderstanding of the law and their rights as co-habiting couples. For example, one common misconception, was the principle of 'Common-Law Marriage'. (For their full results see their article here).
'Common-Law Marriage' is a legal principle which exists in only a small amount of jurisdictions, whereby co-habiting couples are granted rights under the law if they are effectively married i.e. they are arranging their affairs as a married couple would and they are married for all intents and purposes, expect without the legally binding document or religious service.
Unfortunately for many couples, England abolished the principle of 'Common-Law Marriages' in 1753 by way of the Marriage Act 1753. The Act also applied to Wales, but due to the way that law-making bodies were established around this time, Scotland had independent law-making capacity so they chose not to introduce the same requirements. The Act introduced minimum age requirements for marriage, among other stipulations, which led to some couples crossing the Scottish border to the now well-known Gretna Green, and other villages along the border, to get married under Scottish Law.
So, to help co-habiting couples under their rights, our expert team at MG Legal have taken the time to answer some of the most common questions we receive from co-habiting couples. If you need some advice, take a read below, or contact our expert Family Solicitors Lancaster today on 01524 581 306 or email firstname.lastname@example.org to arrange a free-initial consultation.
Our house is in my partner's sole name. What does this mean if we decide to separate?
"Our Family Solicitors Lancaster would explain that, unfortunately, under the current family laws available to people, you would not be able to make a claim. The only way to claim against a property which you do not own legal title to, is under the Trusts of Land and Appointment of Trustees Act 1996 (also referred to as TLATA or TOLATA). The Act allows people to make a claim as a beneficial owner (i.e. they perhaps have contributed financially by way of improving the house, or they may have contributed to the mortgage and upkeep)."
Our Family Solicitors Lancaster can still provide you with advice on whether you have a right to claim under TLATA, and can help you to get the ball moving. For an initial consultation, and to find out whether you have any right to claim, contact our Family Solicitors Lancaster on 01524 581 306.
I do not have a Pension but my partner does. Can I make a claim?
"The sad reality of our current law is that you would not be able to make a claim. Whilst it may seem unfair if you have stopped work to take care of the children, or if you have contributed to your partner's pension, unfortunately circumstances of individuals are not taken into account."
If my partner passes away without a Will, am I entitled to make a claim?
"Under the Laws of Intestacy, a co-habiting partner is not recognised as having a right to claim. However, if you have children, they would still be entitled to benefit. Every situation is different so for in depth advice on how to protect your partner if you pass away, contact our Will writing expert team on 01772 783 314 or email email@example.com."
Can myself and my partner protect ourselves now legally so that if we split up there is an agreement in place?
"Thankfully, there are some courses of protection available for co-habiting couples. For example, you could chose one of the following methods:-
Co-habitation Agreement - This can cover a range of provisions, such as finances, property, your child care arrangements and arrangements for pets. These can be made completely bespoke and would be tailored to the needs of you and your partner.
Declaration of Trust - This Declaration covers the property owned by you both, and allows couples who are perhaps purchasing jointly but in unequal contributions to obtain back what they put in when the property is sold. It could also cover contributions made by other people i.e. family members. For expert advice on entering into a Declaration of Trust with your partner, we would suggest speaking to both our Family Solicitors Lancaster and our Conveyancing experts, who you can contact on 01995 602 129.
Will - Whilst this would not help a couple when they split as the provisions of a person's Will are only effective once they have passed away, as co-habiting partners are not entitled to make a claim under the Laws of Intestacy, it is important that co-habiting couples have a Will in place, which names their partners as a beneficiary (if this is how they would want their estate to pass on their death). For expert advice on making a Will contact the Wills & Probate team on 01772 783 314 or email firstname.lastname@example.org.
If you find yourself in a situation where you are co-habiting but have decided not to get married, or you are entering into a new co-habitation, it would be wise to seek independent legal advice to make sure that you are protected as many people do not find out until it is too late!"
For first-class advice, contact our expert Family Solicitors Lancaster on 01524 581 306 or email email@example.com.
MG Legal - Your Local Family Solicitors
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