Contrary to popular belief, there is no such thing as a “common law marriage”. A couple who live together for a long period of time do not enjoy the same legal status as those who are legally married or in a civil partnership. With more couples choosing to cohabit and often purchasing a property together, it is vital that they consider what would happen if their relationship were to break down or if one of them were to die.
In Scotland new legal rights and obligations for cohabiting couples were introduced by the Family Law (Scotland) Act 2006. On the breakdown of the relationship, either partner can now raise a court action for the payment of a financial sum. This claim must be made within one year of the end of the relationship. There are strict criteria which must be met and ultimately the success of any claim will depend on the individual circumstances.
On death, a cohabitant has no automatic right to a share of their deceased’s partner’s estate. If someone dies without having prepared a Will, the law dictates that their estate will pass to their blood relatives. A cohabitant can now make a claim for financial provision on death, but only where the partner died without a Will. Such a claim must be brought within 6 months and again there are strict criteria to be met with the outcome of each case being decided in court.
In England and Wales, there is limited protection for cohabitants on the breakdown of a relationship. The statutory remedies which are currently available are restricted to very specific circumstances - generally where there is an interest in a house, or where there are children involved. It has been recognised however that this needs to be addressed and there is currently a draft Bill making its way through Parliament.
That said, the English equity courts will intervene in the appropriate circumstances and there have been recent cases where they have done just that. Whether in Scotland or England, Court proceedings can be extremely expensive. This can of course all be avoided by couples taking appropriate legal advice at the outset. A Cohabitation Agreement can be prepared to protect the assets which either party may bring to the relationship (for example a substantial deposit for a property). It is also essential for the couple to have wills prepared to protect their assets for their partner (or from their partner) as the case may be.