Myth #35: Living with a partner for several years will entitle couples to the same legal rights and responsibilities that flow from marriage.

Common law marriage is a term that has often been used to define the relationship between two people who are living together but have not legally formalised their relationship by a legal ceremony of marriage. However, like in the United Kingdom, common law spouse is not a recognised legal status in Bermuda. Cohabitation does not automatically give rise to the legal rights that you would have if you had been married.

As such, couples who chose not to marry must consider what will happen when their long-term relationships end, particularly when children and property are involved. One of the biggest misconceptions is that when cohabiting partners separate, they will be entitled to the same financial remedies as married couples who are separating or divorcing.

Maintenance

The starting point is that there is no legal obligation to support a cohabiting partner either during cohabitation or after the breakdown of a relationship as compared to a divorcing or separated spouse who can claim monthly maintenance (like alimony) from their former spouse in order to meet their financial needs.

Property

If the property is held jointly, it will be shared in accordance with the legal interest set out in the documents of title. If the property is held as joint tenants but the parties have contributed to the property in unequal shares, the Court may find that one party has a greater share in the property than other party.

If the property is in the sole name of one party, the other party has no enforceable rights of occupation when the relationship breaks down. Further, if cohabiting partners separate, save for the exceptions set out below, the courts do not have the power to override the strict legal ownership of the property and divide the property as the court can do upon divorce.

Exceptions

If the cohabiting partners’ property is not in joint names, they will have to rely on the rules of equity in order to establish their rights to share in the property. Those rights may arise as a result of:

1. An express declaration of trust within the documents of title or other expressly created interest.

2. On the basis of a contribution to the purchase price of the property (giving rise to a resulting trust).

3. As a result of the parties common intention upon which the claimant has acted to his or her detriment, for example, by making financial contributions, on the understanding that he or she would thereby acquire an interest in the property (giving rise to a constructive trust).

4. In a recent case, contribution in kind was taken into consideration when determining a parties’ beneficial interest.

Children

Parents have a responsibility to provide for their children. This is irrespective of whether the parents are married or not. The Court has discretionary powers to make orders for capital and income relief in favour of the children on applications made under the Children Act 1998 and orders for maintenance under the Minors Act 1950.

Death

Where an unmarried couple is living together and one of them dies, the survivor does not have rights under the intestacy rules to inherit any part of the estate of their cohabitee. This is the case no matter how long the parties have lived together and irrespective of whether they have children together.

Under the intestacy rules only a spouse or a former spouse can make a claim for financial support from the estate of a deceased.

Cohabiting partners should therefore draw up a will if their intention is to benefit their partner.

Adoption

Until very recently, only married couples in Bermuda were able to make a joint application to adopt a child. However, in a recent case the Judge held that a joint application to adopt a child may be made by an unmarried couple, whether same-sex or different-sex, provided that they have been living together for a continuous period of not less than one year immediately before their application.

Immigration

Recent amendments to Immigration Policy allow a “partner” of a Bermudian, PRC holder or work permit holder to enter and reside in Bermuda. The partner can also seek employment while residing in Bermuda. “Partner” is defined as a person who has been living with a Bermudian, PRC holder or work permit holder in a relationship akin to a marriage for at least two years prior to the application. In order to qualify, the couple must also satisfy the Department of Immigration that their relationship is genuine and subsisting, and the policy provides guidance on the factors that will be assessed when making this determination.

Protection for unmarried couples?

Cohabiting partners may enter into a cohabitation agreement to regulate their relationship and in particular their property rights. Cohabitation agreements are governed by the law of contract. It is important when entering into a cohabitation agreement that the parties enter freely and voluntarily and that both parties had the benefit of independent and competent legal advice. This will help counter any allegation of undue influence. You may wish to consult an attorney to draft a cohabitation agreement.

The recent decision in relation to adoption cases and the Immigration Policy amendment are progressive steps forward for Bermuda in terms of the treatment of cohabiting partners, and may open the doors for further Human Rights challenges to legislation that discriminates against cohabiting partners. However, until there is a major overhaul to the legislative framework in Bermuda, cohabiting partners should seek legal advice on entering into a cohabitation agreement which will regulate their finances in case of breakdown of their relationship.

Alma Dismont is an Associate in the Matrimonial and Family Team at Marshall Diel & Myers Ltd. A copy of this article can be found at the firm’s website at www.law.bm. This column is for general guidance only and does not constitute legal advice.