It should be noted that the legal rights of cohabitating couples are much more limited than spouses or civil partners. The idea of a “common law” spouse is a myth. We set out below rights that spouses and civil partners may enjoy but are not available to cohabitants.
With cohabitants the following are not available as legal rights:
- A legal process to bend the relationship;
- Duty to provide financial support;
- Finance and property division following relationship breakdown;
- A statutory right to occupy the family home.
In relation to children there are some similarities and differences:
- The natural mother has automatic parental responsibility but the father has to acquire it by being named on the Birth Certificate, by agreement or by Court Order;
- As with spouses, both parents may apply for an Order relating to where the child should live or contact;
- As with spouses, both parents have a duty to maintain their children and support may be obtained from the Child Support Agency. In relation to domestic violence as with spouses and civil partners the parties may bring proceedings under the Family Law Act if they are associated person.
In the case of spouses and civil partners there are special rules about what happens to Wills when divorce or dissolution occurs. In the case of cohabiting couples there is no effect.
There is a traditional view in law that a cohabitation contract cannot be enforced. This arises out of the idea that by forcing such contracts the Courts would be undermining marriage. However, a “contract between cohabiting partners for the regulation of property and financial matters” may be enforceable. Such an arrangement will be scrutinised very carefully by the Court and legal advice should be obtained.
Is the law likely to change in this area?
This is something that has been considered by the Law Commission however, while supported by many, there are no legislative plans.
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