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The Myth of the 'Common Law Marriage' and How It Can Affect You

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A recent survey has shown that over half of UK citizens still believe in one of the biggest urban myths, that of of the 'common law marriage'. The study, conducted by the charity One Plus One in advance of Marriage Week 2013, found that 58% not aware that this is not a recognised legal status or that living together does not automatically give rise to the same legal rights against their partner that they would have had if they had been married. These are worrying findings a time when an increasing number of couples are choosing not to marry; the 2011 census recorded that over 10% of adults were cohabiting, and many are therefore doing so without realising the full implications of their situation.

As a family lawyer, I have often had to break the news to clients that they do not have the ability to claim any financial support against their ex-partner, even if they've been living together for years. So what are the key facts that couples living together should be aware of?

Children

A father who is married to the child's mother at the date of birth will automatically have parental responsibility over the child. This means that they will have all of the legal rights and responsibilities that a parent will normally have in relation to their child, such as input over where their child is schooled, their religion and similar issues.

However, if the father did not marry the mother and the child was born before 1st December 2003 or he is not on the birth certificate, then he will not automatically have a parental responsibility. To obtain it, he will either need to enter into a formal agreement with the mother or obtain a court order giving him permission.

Taxes

Marital status can also affect whether you have to pay any tax. Transfers of assets between a husband and wife (or civil partners) will be exempt from capital gains tax, but this does not apply if the couple are not married. Similarly, exemptions for inheritance tax that are given to married couples are not available.

Death

If one of an unmarried couple dies without leaving a will, then the other will not automatically inherit their estate, whereas if they had been married, they will inherit all or most of the estate.

Separation

Perhaps the biggest misconception is that living together will give rise to the same rights on separation as they would on divorce. This is not the case and the difference in outcomes can be huge. Marriage gives a couple the potential to make a claim against all of each other's assets, including each other's properties. This can be important where one is financially weaker and needs the support of the other even after their split.

However, there are no such rights for unmarried couples and they can only obtain a share of their partner's property if there is a written agreement, such as a declaration of trust or cohabitation agreement, allowing them to do so or they can prove they made a contribution to it, which is often difficult to do. Similarly, while a spouse could obtain ongoing maintenance from their husband or wife, if they are not married, then there is only the ability to make a claim for maintenance to support any children that they have together. This means that some find they are not entitled to a penny if their relationship breaks down, even if they have been together for decades, which can have a devastating effect on them.

Despite calls from lawyers, judges and campaigning groups for the introduction of laws to protect those who are not married, there are no plans by the Government to do so any time soon. Some argue that if someone wants the protection that marriage affords they should get married, but that ignores situations where one partner refuses to marry the other or, as can be seen, the vast amount of people who think that merely living together provides some form of protection.

Marriage is not for everyone, but we must do what we can to educate and help ensure that where a couple does decide not to get married, they are doing so from an informed position and with the knowledge that the choice is right for them.