Published by: Amelia Scippo

‘Common Law Marriage: Fact or Fiction?’

Cohabiting couples were the fastest growing family type in the UK in 2015 and 17% of families are cohabiting couple families (Office of National Statistics, Families and Households: 2015 (ONS Report)).

Despite the growing trend of couples choosing not to marry, or never doing so for various reasons, many of those in cohabiting relationships are unaware of the legal position if the relationship breaks down, or on the death of one partner.

Despite no such thing as a ‘common law marriage’ existing in England & Wales this, the ONS Report states that 51% of people spoken to in a 2008 survey believed that cohabiting couples who have lived together for some time probably or definitely had a ‘common law marriage’ giving them the same legal rights as marriage.

If your cohabiting relationship ends, you would not have the same legal rights over property, pensions and income as a spouse would on the breakdown of a marriage.  On the breakdown of a marriage, the Court is entitled to deal with the parties’ assets, income and pensions in whatever way it sees as being fair and reasonable but, on the breakdown of a cohabiting relationship, the same does not apply.

This means that a cohabitant may not be able to make any claim against any property owned by the other party and will have no claim over their pensions or income (subject to claims on behalf of any child of the relationship).  Often unmarried couples wrongly assume that they may have acquired some form of interest in their partner’s property because they have been living at the property for some time.

Equally, in the event of the death of one of the unmarried couple, the surviving party would not automatically inherit all or any part of their partner’s estate, unless this is specifically provided for in their Will.

Attempts to secure legislation to provide for cohabitants have been unsuccessful, despite considerable support for this among interested bodies and public expectation that such rights exist.

So how can you protect your position?

Enter into a Cohabitation Agreement setting out how your finances will be dealt with during the relationship and in the event of a separation.
If you own or intend to own property jointly, enter into a Declaration of Trust to protect your respective interests in the property.
Make a Will to ensure that your estate passes as you would wish in the event of your death.
Take specialist legal advice.

Taylor Walton’s experienced family lawyers can provide specialist advice concerning the rights of cohabitants, and also disputes concerning children and matrimonial issues.

Taylor Walton Solicitors offer FREE Initial 30 minute consultations with our Family lawyers (in return you will be invited to make a £20 donation to charity).