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In what way is a cohabitant in a common law marriage disadvantaged?
In England and Wales common law marriages were abolished as providing legal rights more than 250 years ago and women who cohabit have far fewer rights when a relationship ends than women who are married and divorce. However in Scotland cohabiting couples staying together for a long time are treated by Scottish law as if they were married under the legal state "marriage by custom and repute."
Women:
There are three main areas where a partner living with a man is disadvantaged when compared to a married woman:
- She cannot claim maintenance for herself (although she can claim maintenance for any children resulting from the relationship).
- She has fewer rights over the family home:
- unless she is the owner or the joint owner she can be evicted by the partner
- she can only claim a share in the value of the home if it is registered as owned by the man in exceptional circumstances. If there are children involved it may only be possible to secure the use of the home for her and the children, but only until the children complete full time education, at which time ownership of the home would revert to the father. A divorcee in the same circumstances would have the home or a substantial part of the equity in it transferred to her outright.
- Unless the man has made provision for her in his will she will receive nothing under the rules of intestacy and can only claim a share of his estate if she can prove she was dependent on him
Men
Unmarried fathers are in a much weaker position regarding the children than the unmarried mother and without any formal agreement or court order the mother is given sole parental responsibility for the children of an unmarried relationship and thus have final say in how the children are brought up (although changes to this are proposed).
But unmarried fathers are required to support their children financially.
Any cohabiting couples should consider whether they should undertake various legal measures to protect their position particularly with regard to what happens if the relationship breaks down or one partner dies. Our solicitors can advise on what measures might be appropriate to your relationship.
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