This note has been prepared for the guidance of those contemplating or already living with but not marrying another person whether of the same or opposite sex or whose relationship has broken down, but you are strongly advised to seek specific advice about your own particular circumstances. This note is prepared in accordance with our understanding of the law as at March 2005 and it does not take account of changes to be introduced by the Civil Partnership Act 2004, which is expected to come into force late in 2005.

THE EXPRESSION “COMMON LAW WIFE/HUSBAND” HAS NO LEGAL MEANING WHATSOEVER!

You or your partner may choose to use that expression but it gives no legal rights at all nor imposes any legal obligations.

Maintenance

However long you live with someone, you have no right to maintenance from them for yourself if the relationship breaks down. If you have had children together, and they are living with you after the separation, you do have a right to maintenance for them, and if the figure cannot be agreed or is not paid, either of you can apply to the Child Support Agency.

Children

If the child’s birth has been registered after 30 November 2003, and the birth certificate names the father, he as well as the mother will have what lawyers call Parental Responsibility. This really means no more than that the person holding it has the right to be consulted about major issues affecting the child’s upbringing. If, for example, the child is in the day to day care of the mother, the father, even if he has parental responsibility, is not entitled to interfere with the ordinary day to day care arrangements.

Where the birth was registered before 1 December 2003, whether or not the father is named on the certificate, he does not have Parental Responsibility unless it is given by an agreement signed by the mother (which has to be in a particular form) or by order of the Court. The Court will usually make such an order on the father’s request unless there are very strong reasons to the contrary. Mere failure to pay maintenance is not usually enough to justify the with-holding of Parental Responsibility.

Whether or not the father has Parental Responsibility, he is entitled to reasonable contact with the child and again this can be enforced by the Court if necessary. Again it is usually only in extreme cases that the Court upholds a mother’s refusal to allow contact although there can be much debate about what contact is reasonable in any particular case.

A father can also apply to be the child’s main carer if he considers that that will be better for the child than being brought up by the mother – in that sense, the father is in the same position as if he had been married to the mother.

If the Court does have to adjudicate upon the questions of Parental Responsibility and/or who is to be the child’s main carer and/or contact, the paramount consideration for the Court will be what is in the best interests of the child, rather than what the parents themselves want.

The house and other capital assets

The starting point is that if the house or any other asset is in the name of only one of you, the other has no claim to any part of it or its value. If the house is in joint names,

the purchase document should specify the shares which each of you have, but if it does not do so, normally the shares will be taken as equal even if you contributed unequally to the purchase price. If the house is in your partner’s sole name, you do not acquire a share of it by just contributing to the monthly mortgage payments or other day to day living expenses, but sometimes some other significant financial contributions, e.g. towards the improvement or extension of the property, may give you a financial stake. This is a complex legal area and you should get advice on your specific circumstances.

Generally, however, if the house or any other asset is in your partner’s sole name, you can expect to have to walk away empty-handed if the relationship breaks down – and vice versa.

The position of an unmarried but formerly engaged couple may be slightly different and again you should seek advice on your own particular circumstances.

Also, in limited circumstances, the Court can order a former partner to provide capital enabling the other to provide for a child. This power is not frequently exercised but for example, a father might be ordered to provide capital to enable the mother to buy a home for the child, but even if it means that the home has to be sold, the money has to be paid back to the father when the child grows up or possibly even sooner if the mother becomes able to meet the child’s housing needs herself.

Tax

Broadly speaking each of you will continue to be treated completely separately by the Inland Revenue, and whereas there is no Inheritance Tax payable when one party to a marriage dies and leaves everything to the survivor, that concession does not apply to unmarried couples. Similarly, Capital Gains Tax may be payable on transfers between unmarried couples but it is likely that these differences will be removed in relation to partnerships registered under the Civil Partnership Act 2004 when that comes into force.

Welfare Benefits

By contrast, the general rule is that your entitlement to state benefits such as Income Support (and also Legal Aid) depends on the position of both of you whether or not you are married. However, your partner’s financial position will not be relevant to your financial eligibility for Legal Aid in relation to the actual breakdown of the relationship.

Inheritance

Although it is a common misconception that if there is no will, a married person’s estate passes automatically to their surviving spouse in full, there is an element of truth in it. However, where a couple have merely lived together unmarried, the survivor inherits nothing on the other’s death unless this has been stipulated by will or the form of the joint ownership of any particular asset is such that on death it passes to the survivor. Again this depends on the wording of the purchase document. Moreover, in some circumstances, the survivor of a heterosexual couple who have lived together for at least two years immediately prior to the death may be able to apply for financial provision from the deceased’s estate despite the existence of a will to the contrary (or if there is no will). Where the cohabitation lasted less than two years, an application may still be made provided that the applicant was being wholly or partly maintained by the deceased.

We therefore recommend that a couple who intend to live together or are already doing so consult us for further advice about making arrangements as to what is to happen to their assets in the event of the relationship ending by separation or death.