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Unmarried Couples and the Common Law Myth.

This article appeared in the March 2010 edition of Chic Lifestyle magazine.

common law husband or wife myth

One in six couples in England live together without getting married. Many of them are in long term relationships and wrongly believe that they have the same rights as married couples.

Long term partners often consider themselves to be ‘common law’ husband and wife after living together for a number of years, but the term ‘common law’ has no legal standing in this country in this situation.

The brutal truth is that, if you separate from your partner, the law will not treat you as equal partners in the way that it would a married couple. This could have serious implications both in terms of financial settlements and even possibly your rights in respect of your own children.

A woman may have no rights over the property in which she lives if the deeds are held in her partner’s sole name and he has always paid the mortgage. So a woman who has given up work to look after the children could be severely disadvantaged come the separation.

Similarly, the rights of a father over his children are not as cut and dried as you would imagine. Even if the child has the same surname and the father is registered on the birth certificate, he may not automatically have parental responsibility, which is the legal right to make decisions which affect the child’s life

Sandra Russell, family solicitor and Partner at Sheffield law firm Norrie Waite & Slater, talks us through the laws relating to unmarried couples.

Finances and the family home

For many couples the main asset they own is the family home. It is not uncommon for ownership of a home to be in the sole name of one partner, although often the other partner will have contributed financially to that home either by means of deposit, mortgage payments or paying for improvements.

If you were to separate under these circumstances you would need to try to negotiate a settlement with your ex-partner. If necessary, court proceedings may need to be issued for you to establish a proper share of the property, although this can be complex and requires specialist legal advice.

Establishing your rights to a share of the property may be possible if you can show that you had an agreement with your partner about how assets would be divided on separation (this may be in writing or a verbal promise, if it can be proven), or if you can provide financial records indicating that you made a significant contribution to the property.

Cohabitation Agreements

One way of avoiding potential disputes later on is to enter into a Cohabitation Agreement with your partner. A Cohabitation Agreement is effectively a contract which you both sign which sets out how assets will be divided in the event of you separating. In it you can state who owns what and, for assets which are jointly owned, you can state how they should be divided on separation and in what proportion. For a Cohabitation Agreement to be effective it is important to get it drawn up by an experienced family solicitor.

Other measures can be taken to protect yourselves in the event of separation or death, including both of you making Wills.

Unmarried fathers rights over children

Even if you are the biological father of a child it does not mean that you have an automatic right in law to parental responsibility.

If you are unmarried and separate from the child’s mother and you do not have parental responsibility, then you do not have a legal say in the child’s upbringing.

Parental responsibility is a legal term used to define who has the rights and obligations in making decisions which affect the child’s life. Parental responsibility includes legal rights and responsibilities such as:

  • Providing a home for the child
  • Having contact with and living with the child
  • Protecting and maintaining the child
  • Disciplining the child
  • Choosing and providing for the child’s education
  • Agreeing on the child’s health and medical care
  • Consenting to medical treatment for the child

Mothers automatically have parental responsibility. If the parents are married at the time of the child’s birth then the father has automatic parental responsibility. For unmarried fathers the rules are more complicated.

You do have parental responsibility if:

  • You are the father of a child born after 1st December 2003 and your name is on the birth certificate.

You do not have parental responsibility if:

  • You are the father of a child born before 1st December 2003 and are not married to the child’s mother.
  • You are the unmarried father of a child born after 1st December 2003 and you are not named on the child’s birth certificate.

If you do not have automatic parental responsibility, you may be able to get it in a number of ways. You could marry the child’s mother or enter into a voluntary parental responsibility agreement with her or, if this is not an option, then you can apply to the court to obtain a parental responsibility order. An experienced family lawyer would be able to help you with this as you need to show a number of things, including that the application is being made in the interests of the child’s welfare and that there is a degree of attachment between you and the child.

As you can see, cohabiting can be a potential legal minefield in the event of a separation, particularly where close financial ties exist, or when you have children. The law in the UK is some way behind catching up to the way in which many of us live our lives today. Until it does, you may find yourselves in the hands of a solicitor trying to fight for the rights you thought you already had.

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