Key differences in rights between married and unmarried couples across the four fundamental areas of home, finances, children and death.
One of the most enduring and widespread myths in English law is the perception of the ‘common law marriage’, whereby if a couple live together, then after a certain period of time – probably the most common perception is seven years, but two and four are also popular (and mistaken) beliefs – they will acquire similar rights to those of a married couple.
It is believed that there are more than two million unmarried couples in England and Wales, meaning over four million people are potentially unaware of just how exposed their situation is.
As far as the law is concerned, common law marriage hasn’t existed in England and Wales for more than 250 years, ever since the Marriage Act in 1753 declared that all marriage ceremonies must be conducted by a minister in a parish church or chapel of the Church of England to be legally binding.
In 2004, the Civil Partnership Act gave same sex couples the same legal rights and responsibilities as married heterosexual couples, and for the remainder of this article, the term marriage will refer equally to civil partnerships between same sex couples.
Unfortunately, the nature of personal relationships is that when things are going well and the loving couple are in love with one another, probably the last thing on either of their minds is to protect their individual positions should the relationship break up, and yet when relationships do break up, all too often they swing from the one extreme of love to the other of bitter disputes and a stubborn refusal by either side to give ground.
In the case of a marriage, the law provides extensive provision for key matters including the home, finances, the children, and in the event of the death of one of the partners. When divorcing, the law effectively places all assets from both partners into a common pool that is distributed by the judge according to what they deem to be ‘fair’.
In the case of an unmarried couple, the law effectively treats them as separate individuals, often taking a very mechanical view of how things should be divided, with little scope for the judge’s discretion.
Generally speaking, should you decide for whatever reason to live together but not get married, then to borrow from the business maxim that the best time to sign a contract is at the beginning when you’re still friends, we strongly recommend that you agree from the outset, and in writing how you intend to settle matters in the event you should break up. And without wishing to be too pessimistic, it is a fact that 45% of marriages and a much higher proportion of unmarried couples will eventually separate.
Quite ironically, this is essentially a ‘pre-nuptial’ agreement which at present is not binding on a divorcing couple as the courts can, and usually do, ignore them if they do not agree with their provisions. However for an unmarried couple, such an agreement can indeed be legally binding.
In the rest of this article we shall look at some of the key differences in rights between married and unmarried couples across the four fundamental areas of home, finances, children and death.
It is quite common following a divorce for the former matrimonial home to be transferred into the sole name of the ex-wife who continues to live there with the children of the marriage. Furthermore, the ex-husband may also be obliged to pay maintenance for his children and/or his ex-wife. This is because the courts invariably place the welfare of the children above all other priorities, which usually means maintaining a stable home environment with sufficient income for the upkeep.
The case of an unmarried couple not in a civil partnership is very different. The judge is not allowed to exercise their discretion – whether the welfare of the children is at stake or not – and the property rights of the former partners remain exactly the same after the split as before.
If a house is bought in joint names, it should be split accordingly on separation, and either party can force a sale of the property to realise their share. If the parties are contributing unequally to the purchase price, or to payments on the property, for example if he is paying 80% and she is paying 20%, this should be reflected in the amounts they take away with them.
If the property is in the sole name of one party, it remains that person's property on separation, unless the other party can establish that there was an intention that they would be entitled to a share in the property. Proving this can be highly problematic – unless the couple had thought to enter into a written agreement when purchasing the property.
Pension contributions can pass from one partner in a marriage to another under certain conditions should they die. Unmarried couples have no such rights whatsoever and for inheritance tax purposes the taxman treats them as individuals even if they have been together for years and hold their assets in joint names.
While there is no inheritance tax between husband and wife, if one unmarried partner dies, all their estate above £325,000 (known as the nil rate band, and set at this level until 2015) will be taxed at a rate of 40%.
The mother is the only adult who has any automatic rights in respect of the couple’s children. She alone will have parental responsibility for them, which covers all aspects of their welfare and upbringing. However since December 2003 an unmarried father can acquire similar rights if he registers the birth of the child jointly with the mother.
If an unmarried couple split up, the mother will automatically have the right to look after her child, and the father could not challenge her unless they have entered into a Parental Responsibility Agreement or he has a court order in his favour.
Inheritance is certainly an area where having the foresight to make arrangements in writing i.e. a will, can make all the difference should one of the couple die. Inheritance law dictates that in the absence of a will the estate will pass to their immediate family (except their house if they own it together with an unmarried partner).
The crucial difference is that a husband or wife is considered the next of kin, but an unmarried partner is not. As such, an unmarried partner will not even be entitled to administer the deceased partner's estate, nor be involved in decisions on medical treatment or organ donors – unless a will specifies as such.
by HAMILTON BRADY LTD
Tel: 0844 873 6081
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Disclaimer: The above article is meant to be relied upon as an informative article and in no way constitutes legal advice. Information is offered for general information purposes only, based on the current law when the information was first displayed on this website.
You should always seek advice from an appropriately qualified solicitor on any specific legal enquiry. For legal advice regarding your case, please contact Hamilton Brady for a Consultation with a Solicitor on 0844 873 608.