The term “common law marriage” is a popular one, often used to describe couples who have lived together for a long period, perhaps have children, and present themselves to the world as a married couple. It’s a widespread belief that after a certain number of years, a couple automatically gains the same legal rights as a married couple. But is this true in the UK? The answer, which comes as a shock to many, is a resounding no.
In England and Wales, “common law marriage” has no legal standing whatsoever. The concept is a myth. No matter how long you have lived with your partner, you do not have the same legal rights as someone who is married or in a civil partnership. This can lead to significant and often devastating consequences in the event of a separation or the death of a partner.
The Major Differences Between Married and Unmarried Couples
The first step to protecting yourself is understanding the legal vacuum that cohabiting partners fall into. The main differences in protection are as follows:
- Property Rights: If you are not a legal owner of a property you share, then you have no automatic right to remain in the property if you separate. This is the case even if you pay the mortgage or contribute to the household bills. In contrast, married couples have an automatic right to occupy the “marital home”, and the court can make orders regarding the sale or transfer of the home.
- Financial Support: Upon the breakdown of a cohabiting relationship, there is no legal obligation to provide ongoing financial support to a former partner, as there is under the spousal maintenance provisions for married couples. This may leave the financially weaker partner, who has perhaps given up a career to raise children, in a very vulnerable position.
- Inheritance: This is one of the most important areas of difference. If an unmarried partner dies without a will (known as dying “intestate”), the survivor is not automatically entitled to anything from the estate under the rules of intestacy. The deceased’s assets will be distributed in a strict legal hierarchy, starting with children, then parents, siblings and other relatives. The survivor’s cohabitee may inherit nothing, even after decades of cohabitation.
- Pensions: Cohabiting partners have no automatic rights to their partner’s private or state pension upon their partner’s death. Although many pension schemes allow nominations, it is not an automatic right as with a spouse.
What About Scotland?
It should be noted that the law in Scotland is slightly different. While it also does not recognise “common law marriage” as such, cohabiting partners who can show that they have been living as a couple may be able to make a claim for financial provision on separation. The law in Scotland allows the courts some discretion to make orders for property and financial provision in a more limited way than divorce law, but it is not a direct alternative to marriage.
How to Protect Yourself as a Cohabiting Couple
Just because you have no legal protection does not mean you are helpless. There are several things you can do to protect your rights:
- Draft a Cohabitation Agreement: This legal contract, also known as a “living together agreement,” outlines what will happen if your relationship ends. It can include details about property ownership, bills and joint assets, and provisions for children. This document can provide clarity and peace of mind for both partners.
- Make a Will: This one’s non-negotiable. The only way to guarantee that your partner is taken care of after your death is to make a valid Will that clearly states your wishes. If you die without a Will, you’re leaving your loved ones to chance and the default intestacy rules.
- Consider a Declaration of Trust: If you buy a property together, a Declaration of Trust can be used to specify each person’s ownership percentage. This can be especially important if one partner is contributing more to the deposit or mortgage payments.
Don’t let the “common law marriage” urban myth fool you; cohabiting partners have almost no legal rights. If you are cohabiting, you must obtain legal advice as soon as possible to understand your legal position and take steps to protect your future.
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