Common Law Partner Rights When Separating UK

Common Law Partner Rights When Separating UK

Common Law Partner Rights When Separating UKContrary to common belief, a common law marriage is not a legally recognised concept in the UK, and there is no such thing as a ‘common law wife’. The law treats unmarried couples in the same way it would treat individuals in any other type of relationship, such as a friendship. If the couple live together, they do so as cohabitees. If they have children, the father may not have automatic parental responsibility unless one of a discrete set of criteria applies. These matters can have little impact when the couple are happily cohabiting but can make a separation incredibly stressful and acrimonious. So, to what extent does a common law partner have rights when separating in the UK?

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Common Law Partner Rights When Separating In The UK – Children

When a married couple or civil partners separate, the mother and father share parental responsibility for their children. This means they are jointly obliged to protect and maintain the children and to provide a home for them. They are entitled to partake in the child’s upbringing and have a say in important decisions, such as those relating to medical treatment.

When an unmarried couple separate, however, the law gives the mother sole parental responsibility for the child, unless one of the following circumstances arises:

  • The parents jointly registered the birth, and the father is named on the child’s birth certificate.
  • The parents enter into a parental responsibility agreement, giving them both parental responsibility for their child.
  • The Court makes a parental responsibility Order.

Many parents believe that having parental responsibility gives them an automatic right to see their child. However, this is not the case. Spending time with your child is a separate issue from parental responsibility, and the parents should try to reach an agreement relating to the extent and practicalities of either parent’s contact. If they need a little assistance in reaching an agreement, alternative dispute resolution methods, such as mediation, can prove invaluable. If the parents cannot reach a mutually acceptable compromise, the Court can step in and make a Child Arrangements Order.

A Child Arrangements Order determines the child’s living arrangements and who the child should spend time with. There is no ‘one size fits all’ when it comes to the terms of a Child Arrangements Order. The Judge will consider the family’s circumstances and make the Order they believe to be in the child’s best interests.

Common Law Partner Rights When Separating In The UK – Marital Home

A question that regularly arises in the context of a relationship breakdown where the partners are unmarried is what happens to the marital home.

If the home is owned jointly, both partners are entitled to continue living there. Often, this is untenable, so they must decide what to do with the property. They might sell it and split the proceeds, rent it out and share the income, or one partner might buy the other out. Crucially, if they have a joint mortgage, they both remain liable for the repayments until the mortgage has been fully paid off.

If the property is owned by one partner in their sole name, the non-owning partner has no right to continue living there, regardless of the length of time they shared it with their partner. Some non-owning partners can bring a claim under The Trusts of Land and Appointment of Trustees Act (TOLATA), on the basis that they have a beneficial interest in the property that ought to be legally recognised.

In a TOLATA claim, the Judge seeks to give effect to the couple’s intentions, not to impose a solution the Court considers fair. Accordingly, the non-owning partner must convince the Judge, based on evidence, that the couple intended for the property to be jointly owned, notwithstanding what the Title Deeds say. The types of evidence that might persuade a Judge might be that the non-owning partner had paid for a substantial extension to the property.

Common Law Partner Rights When Separating In The UK – Maintenance

Unmarried partners have no financial obligations towards each other, either during the course of their relationship, or when it ends. They do, however, have a continuing obligation to contribute to the financial maintenance of their children.

Common Law Partner Rights When Separating In The UK – How We Can Help

If you are an unmarried individual facing the breakdown of your relationship, we are here to help. Our family law solicitors have extensive experience in assisting clients in your position to achieve a swift, cost-effective and fair outcome. They will assess your circumstances, explain your legal position and advise on your options. They will pursue your chosen course of action rigorously, striving for the best possible result.

Prevention is always better than cure when protecting your position as part of an unmarried couple. The best way to ensure a fair outcome if your relationship ends is to take proactive steps at an early stage. Our family law solicitors will advise on the measures suited to your case and put them in place for you. For example, they might advise you to consider entering into a Cohabitation Agreement to document your intentions about crucial issues, such as your home and family. By putting the appropriate documentation in place, both partners enjoy the peace of mind gained from knowing what will likely happen if you separate in the future and can concentrate on enjoying your relationship in the present.

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