Un-Wedded Bliss? The myth of the ‘common law marriage’

Official statistics show numbers of marriages in decline as more people choose to simply cohabit. Many cohabiting couples in a long-standing relationship assume that they have acquired rights similar to those of married couples. However, contrary to popular belief, there is no such thing as a ‘common law marriage’.

Despite clear recommendations from the Law Commission to improve the rights of cohabiting couples, separating cohabitees do not have the same legal protection as couples who are divorcing or dissolving their civil partnership. In England and Wales only people who are married, whether of the same sex or not, or those in civil partnerships can rely on the laws about dividing finances when they divorce or dissolve their marriage; the same laws do not apply when other relationships, even very long-lasting ones, break down.

Misconceptions abound, including that by having children together the partners automatically acquire legal rights, whether married, in a civil partnership, or not. This is also not correct. Although there is scope to apply to court for financial provision when there are children, such orders are made for the benefit of the child and not their parents. Similarly, living for a long time in a property, as part of an unmarried couple, does not of itself lead to any rights in that property.

The result of this common myth is often severe financial hardship for the more vulnerable party in the event of separation. For example, a woman who has interrupted her career to raise children may have limited independent resources to rely upon, and may not have up to date skills to re-enter the workforce. A separation could therefore spell a dramatic change in financial security and status.

Cohabiting vs marriage: examples of how rights differ

  • If one cohabiting partner dies without leaving a will, the surviving partner will not automatically inherit anything – unless the couple jointly own property, when property ownership laws may (or may not) dictate inheritance.
  • Cohabiting couples are not, as a general rule, legally obliged to support each other financially when they go their separate ways, but married partners have a legal duty to support each other.
  • An unmarried partner who stays at home to care for children cannot make any claims in their own right for property, maintenance or pension-sharing because of the contribution they have made to the relationship or as a parent. Any rights they may have will be limited to what they have contributed to those assets, which may be nothing at all in the eyes of the law.
  • Unmarried couples can separate without going to court, but married couples need to go to a court and get divorced to end the marriage formally.

What you can do if you plan to cohabit

There are some practical ways that this issue can be addressed before you start to cohabit, or at any point during the duration of your cohabitation relationship. For example, you should understand the terms of how the house you will reside in together is going to be held, and consider obtaining a declaration of trust to set this out.  If you are the one bringing the property to the relationship, you may want to protect it against future claims or limit the extent of those claims.

You can also enter into a (cohabitation) agreement.  This can be relatively simple and straightforward. It can deal with what should happen if you separate, for example, payment of living expenses, improvements to the property and how you will manage day-to-day decisions. It can also detail any monies that have been loaned or provided by third parties for example parents or grandparents.

Conclusion

It really does pay to think ahead and plan, just in case things change in the future. If you are thinking of cohabiting, speak to your partner about taking advice on how you can both protect yourselves and your interests if the worst happens. A little planning at this stage could save a lot of money and heartache later.

Tracey Rodfordis a Managing Associate, advising on family and matrimonial matters at Grosvenor Law