The decision to marry someone and make that shift to become a married couple brings with it a change in legal rights and obligations. Interestingly, most people do not give this a thought and instead, understandably, focus on planning the big day ahead.
Many people believe that if you live with someone for long enough, a common law marriage develops and you both have the same rights over the relationship assets as you would if you were married. This is a myth. Common law marriage does not exist and no matter how long you live with someone, your rights remain unchanged.
In fact, there are fewer rights over property when cohabiting with someone compared to when married to them. This is because there is no law in relation to cohabitants, as the law does not recognise the same. Therefore when cohabitants separate and property is owned, land and trust law has to be relied upon. This can be unfair where one party owns property in their sole name, as the other party may not be entitled to anything, even if they have made financial contributions.
Married couples have different rights under The Matrimonial Causes Act 1973, as upon separation all assets would be taken into account, including property owned in the sole name of one party.
There is a way to avoid the huge shift in property rights if you are planning on tying knot and that is with a pre-nuptial agreement. This type of agreement usually states that each party would retain the assets that they acquired prior to marriage. Whilst this may be seen as unromantic, an increasing amount of individuals are choosing to sign a pre-nuptial agreement in order to protect their assets in the event of divorce.
For married couples, pension values are also taken into account upon separation and this means that a party with a large pension pot could have to share it with their ex-spouse. Pension sharing does not apply in relation to cohabitants.
There are also differences under the rules of intestacy, affecting who would receive your estate in the unfortunate event of your death. If you are married, your spouse would automatically inherit the first £250,000 of your estate. If you are cohabiting, then your estate could automatically pass to a family member (unless your partner makes a claim to the court that they were being maintained by you before your death).
It’s important to note that from 6 April 2017 an additional IHT allowance was introduced where each person is allocated a family home allowance of £100,000 in addition to the existing IHT threshold, which may benefit people who wish to pass on their home to children or grandchildren. The allowance was raised again one final time in 2020, to £175,000. There are some complex rules you have to adhere to, so the property must be left to a child, grandchild, or stepchild. If you’d like us to review your Will in light of these changes, please get in touch today.
Nobody likes to think about the breakdown of relationships, especially at such a romantic time of year but it is important to consider the changes to your legal rights if you’ve popped the question or said yes!
The Family Law team continue to share the latest legal updates and industry insights to raise awareness about the rights of couples living together. See the news page links below for more information:
*The information provided in this article is designed to provide useful information on the subject, not to provide specific legal advice.