Myth-busting the common law marriage!

Despite what you may read in the papers or see on television, there is no such thing as common law marriage. You do not get rights against your partner simply as a result of living together. Regardless of how long you have been in a relationship, if you separate, you cannot claim maintenance for yourself or a share of your partner’s assets unless you are legally married to them.

The position is different if you have children as you may be able to bring financial claims in relation to them. However, you cannot bring any claims for yourself, other than to establish what you already own.

If you separate after living together, when dividing your assets the key issue is usually what should happen to the house. You will also need to decide who keeps the contents and any other assets you may own. However, unless you have any items which are particularly valuable, it is unlikely to be worth incurring costs disputing the ownership of personal belongings and these would usually be either divided by agreement (e.g. retained by whoever bought them) or sold and the proceeds divided equally between you.

The legal position is usually that the property belongs to whoever’s name is on the legal title.

If you own the property in joint names, this will mean that you own any equity in the property in equal shares, unless there were clear evidence that you had agreed something else. If you cannot agree who remains in the house or whether the house should be sold, either of you can apply to the court or to go through arbitration to resolve the dispute. However, it is always better to reach an agreement if at all possible and mediation should be the first port of call in most cases.

If the property is legally owned by only one of you, the legal position is usually that the legal owner is entitled to remain in the property and retain all of the equity when the property is sold in due course. The non-legal owner can argue that he or she is “beneficially” entitled to a share of the value, but the onus is on them to prove their case. It can be very difficult and expensive to do this in practice. It is not enough for a non-legal owner to have been the main carer of the children or to have contributed significantly to the family’s outgoings (e.g. buying groceries or paying for family holidays). You either have to show that you have contributed directly to the property e.g. by paying some of the deposit or the mortgage repayments (not just interest on the mortgage), that you and your partner agreed that you would have a share in the value of the property or that your partner promised you an interest and you relied on this to your detriment. You need really clear evidence to prove your claims.

It can be really important to get legal advice so that you understand your legal position and to try to resolve matters by agreement as early as possible. This is the best way to avoid the financial and emotional cost that arguing these issues through the courts can incur.