Gavin Howe
The term common-law partner is often used to describe a couple that lives together but is unmarried. While many people believe that common-law partners have the same legal rights as married couples, this is not the case. Legally, the term common-law partner is not recognised, and the rights of unmarried couples depend on their specific circumstances. For example, in the UK, unmarried couples do not have the same rights as married couples, regardless of the length of their relationship or whether they have children. Similarly, in Canada, common-law partners are not always treated the same as legally married spouses, and their rights can vary depending on provincial laws. To ensure their rights are protected, common-law partners may consider creating a will or seeking legal advice to understand their specific situation.
| Characteristics | Values |
|---|---|
| Legal recognition of common-law marriage | No legal recognition in the UK, Canada, and most US states |
| Rights of common-law partners | No automatic right to inherit the partner's estate or property; no entitlement to financial support from each other on separation |
| Child arrangements | Both parents are required to support their children, irrespective of marital status; unmarried fathers may not have automatic parental responsibility |
| Property ownership | Common-law partners may have a claim to property if they have contributed to it financially or otherwise |
| Pension | Common-law partners cannot claim their partner's state pension but can choose who will receive their pension pot if they die before it is utilized |
| Tax relief and entitlements | Common-law partners cannot claim certain forms of tax relief and entitlements like the Marriage Allowance |
| Bereavement benefits | Common-law partners with dependent children can claim bereavement benefits |
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What You'll Learn
Child maintenance and child support
In the UK, the term "common-law partner" is a colloquial term for cohabiting couples who are not married or in a civil partnership. Although the term is used in everyday language, legally there is no recognition of a "common-law partner/spouse". This means that unmarried couples do not have the same rights as married couples, regardless of the length of their relationship or whether they have children.
When it comes to child maintenance and child support, the law recognises that a child should have the involvement of both parents in their lives, as long as it is in the child's best interests. Child maintenance payments cover the living costs of a child when one of the parents does not live with them. This is a financial arrangement between the parents, and both parents are responsible for these costs, irrespective of whether they see their children. Child maintenance payments do not affect any benefits that the parents or children receive, including Universal Credit, and they are tax-free.
If the common-law couple has children and one parent is the primary caregiver, the other parent would be expected to pay child maintenance. In certain circumstances, the primary caregiver may also have the right to claim financial support for the child, which can include periodical payments, a lump sum, or settlement of a property. However, not everyone will be entitled to make a claim.
Unmarried fathers should be aware that they do not automatically hold parental responsibility for their children. Mothers automatically have parental responsibility, while unmarried fathers must either be named on the birth certificate, obtain a court order, or enter into a parental responsibility agreement with the mother's consent.
In the case of a relationship breakdown, it is recommended that cohabiting partners have legal paperwork drawn up to set out the arrangements for any children they have. This can include child maintenance and visitation rights. If the couple cannot come to an agreement, either party can apply to the family court for a child arrangements order, which formally outlines how things should work.
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Property ownership
In the UK, the term "common-law partner" is a colloquial term used to describe cohabiting couples who are not married or in a civil partnership. While the term is used in everyday language, it is not legally recognised. This means that unmarried couples do not have the same rights as married couples, regardless of the length of their relationship or whether they have children.
Cohabiting couples can protect their rights to property ownership by creating a comprehensive cohabitation agreement or a declaration of trust. These legal documents outline each partner's ownership rights and intentions. A cohabitation agreement can also help to manage shared assets and financial responsibilities, such as potential buyouts if one partner wishes to leave.
In the UK, property ownership disputes between unmarried couples are handled under The Trusts of Land and Appointment of Trustees Act 1996 (TOLATA). TOLATA allows the Court to make decisions regarding ownership, interest in the property, and whether there should be a sale or continued residence.
If the house is solely in one partner's name, the other partner does not automatically have a right to share in the property upon separation. However, they may be able to prove a beneficial interest if they can demonstrate that it was intended for both partners to share the equity. This can be done by showing financial contributions, such as paying the deposit or contributing to the mortgage or renovations.
In Canada, the rights of common-law partners regarding property ownership vary across provinces. For example, in Quebec, a common-law spouse is not entitled to anything in the event of their partner's death. In contrast, in Manitoba, the Family Property Act provides that common-law partners who have lived together for at least three years are entitled to equal shares of the property value upon separation.
To summarise, while there is no legal recognition of "common-law partner" in the UK, cohabiting couples can protect their rights by creating cohabitation agreements or declarations of trust. In Canada, the rights of common-law partners depend on the specific province, with varying entitlements to property ownership and inheritance.
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Inheritance and wills
Inheritance rights for common-law partners vary by region. In some places, common-law partners are not recognised as such under the law and are therefore not automatically entitled to any inheritance from their partner's estate if they pass away without a will. Intestacy laws, which dictate what happens to the estate of a person who dies without a will, generally prioritise legal spouses, children, and other family members.
However, in certain regions, common-law partners can inherit intestate estates, provided they meet specific criteria. For example, in British Columbia, Manitoba, Saskatchewan, and the Northwest Territories, common-law partners have inheritance rights to each other's estates. To be recognised as a common-law spouse in these regions, couples typically need to meet specific requirements, such as living together for a certain period or having a partnership agreement.
To ensure your common-law partner receives an inheritance, it is advisable to create a will that names them as a beneficiary. This allows you to choose who will inherit your assets and how they will be distributed. Without a will, your estate will likely be distributed according to succession laws or intestacy rules, which may not recognise common-law partners as beneficiaries.
In certain cases, a surviving common-law spouse can file a claim against their deceased partner's estate, particularly if they were dependent on the deceased and can prove they were receiving or had a legal right to receive support from them. Such claims can result in a judge awarding a lump sum, periodic payments, or a transfer of specific assets to the surviving common-law spouse.
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Parental responsibility
In the UK, the term "common-law partner" is often used to describe cohabiting couples who are not married or in a civil partnership. However, legally, there is no recognition of the term "common-law partner/spouse", and it is simply a colloquialism. This means that, in the eyes of the law, unmarried couples are treated as individuals sharing an address, and do not have the same rights as married couples, regardless of the length of their relationship or the presence of children.
Mothers are automatically granted parental responsibility for their children, while unmarried fathers must either be named on the birth certificate, obtain a court order, or enter into a parental responsibility agreement with the mother's consent. This agreement gives the father parental responsibility and must be agreed upon by both parents. If the parents are married, they both retain parental responsibility even if they later divorce.
It is important to note that spending time with the child is separate from parental responsibility, and parents should try to reach an agreement on the extent and practicalities of contact. If an agreement cannot be reached, the Court can step in and make a Specific Issue Order or a Prohibited Steps Order, making decisions on behalf of the parents, based on the child's best interests.
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Pension and tax entitlements
In the UK, the term "common-law partner" is a colloquial term used to describe cohabiting couples who are not married or in a civil partnership. The law does not recognise common-law partners as having the same rights as married couples, and this extends to pension and tax entitlements.
Pension Entitlements
As a common-law partner, you are not automatically entitled to your partner's state pension or occupational pension. Upon the death of your partner, their state pension payments will stop, and you will not be able to claim their pension pot unless you were legally married or in a civil partnership.
However, if your partner chooses, they can arrange a ''survivor pension' for you, especially if you are financially dependent on them. Additionally, if you made significant contributions to their career, thereby increasing the value of their pension, you may have a trust claim.
In the case of separation, common-law spouses do not have the same rights as married spouses to equalise or divide property, including pensions. However, in certain jurisdictions, like Ontario, Canada, common-law spouses can apply for a division of pension credits accumulated during the relationship if they have cohabited for at least one year.
Tax Entitlements
Pensions can be an efficient way to pass on wealth after death, as they are often exempt from inheritance tax (IHT). If the pension holder passes away before the age of 75, their beneficiaries will typically receive the pension benefits free from income tax as well.
It is important to note that the laws and entitlements may vary based on your location. For specific advice regarding your situation, it is recommended to seek guidance from a qualified financial advisor or a family law lawyer.
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Frequently asked questions
A common-law partner is a term used to describe cohabiting couples who are not married or in a civil partnership. In the UK, it is a colloquial term with no legal rights. In Canada, it is recognised in certain situations, such as taxes, immigration, and estate planning.
In the UK, common-law partners do not have the same legal rights as married couples. They are considered "cohabitants" or "cohabitees" and do not have automatic rights to each other's property or state pensions. However, they can make legal agreements regarding finances, property interests, and arrangements for any children.
In Canada, common-law partners may have varying rights depending on the province. In some provinces, they are not recognised as spouses for inheritance under succession laws. They may need to file a claim to the estate, but it is not guaranteed. Common-law partners can choose beneficiaries for their pension pots and may have rights to property if they have contributed to it.
Common-law partners are generally not entitled to financial support from each other upon separation. However, they may be entitled to payments for child maintenance and, in certain circumstances, financial support for the child under the Children Act 1989.
In most cases, common-law partners do not automatically inherit their partner's estate if they die intestate (without a will). The estate will typically be distributed according to default rules or the Intestate Succession Act, which prioritises legally married spouses and children.
