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Insight | For Individuals

The misconception of common law marriage!

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Contrary to popular belief, there is no such thing as a ‘common law’ husband or wife. This is most unfortunate because within the UK millions of couples believe in this idea and often find themselves in difficult situations following separation. Cohabiting couples are the fastest growing family type and in 2017 the BBC tried to highlight the myth of common law marriage.

It is important to dispel the myth that common law couples have similar rights and protections as married couples or couples in civil partnerships. The concept of a ‘common law marriage’ has no legal standing within England and Wales. If a dispute arises from the breakdown of a relationship between non-married couples, any court applications will be dealt with under section 14 the Trust of Land and Appointment of Trustees Act 1996 (TOLATA) in accordance with the Civil Procedure Rules. Applications made by spouses would, on the other hand, be dealt with under the Matrimonial Causes Act 1973 in accordance with the Family Procedure Rules.

The only exception to this would be with regard to applications made by non-married couples who have children together. In these circumstances, an application can be made on behalf of the child under Schedule 1 of the Children Act 1989 (CA) and would be governed in accordance with the principles of family law rather than civil law.

Contrary to popular belief, there is no such thing as a ‘common law’ husband or wife.

To summarise, the only legal rights non-married couples have are:

Property

In dealing with the division of a jointly owned property or a property owned by one party, claims under TOLATA would be limited to strict non-family law principles as detailed above. Therefore, common law partners are not afforded the same protection as married couples.

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A home for the children of the family

In certain circumstances under Schedule 1 CA, a parent can apply on behalf of the children for a property (in the name of the other parent) to be transferred to them for the benefit of the children or for a lump sum to purchase a property for the children to live in.

Claims for child maintenance

If there are children of the family, the party who spends the least amount of time with the child may be liable for child maintenance. The sums payable will be calculated in accordance with the income of that parent and will vary depending on the number of nights the child spends with that parent. The calculation can be carried out online and you can either agree for the party paying maintenance to pay directly or alternatively the Child Maintenance Service (CMS) can assist with this.

If there is disagreement between the parents as to the level of maintenance payable, a formal application can be made to the CMS by the parent who is making the claim. If the non-resident parent earns over £156,000 gross per annum an application can be made under Schedule 1 CA for top-up maintenance.

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If you are or were in a what you believed to be a ‘common law marriage’ which has broken down and want to know what your options are, contact our specialist family law team to seek advice.

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Meet our Family Law & Divorce Legal Team

Our family law team have in-depth expertise across a wide range of legal issues. We will deal sensitively with your case and ensure that you have the support that you need throughout.

Give us a call 01908 662277

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