An increasing number of people are now living together without being married. This is known as “cohabiting” although the slightly misleading term of “Common Law Marriage” is also used. The law does not recognise Common Law Marriage and it has no legal status in itself. Cohabitees do have certain rights with regards to Land and Property and on the death of one of the parties. These rights are different and very limited from those of married couples.
These rights are different from those of married couples and are explained below.
If a property is jointly owned by cohabitees then a “Trust of Land” arises. In a dispute either co-owner could apply to the Courts for an Order for the property to be sold. However the Courts do have discretion to postpone such a sale if this is against the purpose for which the property was bought. If, for example, there are children involved then it may be that the sale will be postponed and the children thus permitted to continue to live in the property until they finish their education.
If the property is owned by only one of the cohabitees then the other cohabitee may be able to claim an interest in the property if:
Each case is usually different and the merits of a claim will depend on the specific facts and are governed by the Trusts of Land and Appointment of Trustees Act 1996.
If a couple has been engaged but not married they can ask a Court to seek a Declaration as to the ownership of property which could include land, shares and cash. This is covered by the Married Women’s Property Act 1882.
Sometimes a Pension Scheme allows cohabitees to make a claim if they are nominated as the beneficiary. However this will depend on the precise rules of the particular scheme. It is important to ensure that such nominations are kept up to date as a cohabitee would have considerable difficulty making any sort of claim if a former cohabitee or other person was still recorded as the nominated beneficiary.
If a cohabitee dies without leaving a Will then the estate is divided under the rules of Intestacy. The spouse or civil partner of the deceased cohabitee, even if estranged, receives the larger portion of the estate, depending on the amount and whether the deceased had children or siblings. Cohabitees do not benefit automatically under the Intestacy rules and it is therefore vital that a Will is made to protect both cohabitees and any children.
If a cohabitee had been living together with the deceased for at least two years up to the time of death and was living as if married to the deceased then a claim for financial provision can be made under the Inheritance (Provisions for Family and Dependants) Act 1975. However there is no guarantee of success in such a claim and it is best to draw up a proper Will to ensure that cohabitees are provided for on death.
The only real solutions at present are to marry, enter into a civil partnership or draw up a Cohabitation Agreement (also known as a Living Together Agreement). The agreement sets out who owns what and how those items are to be divided, including any assets acquired during the relationship, if the relationship breaks down.
Access Law can assist with Wills and Living Together Agreements.