Common Law Marriage Myth: Know Your Rights

It is a widely held belief among many non-married cohabiting couples, that their relationship is a “common law marriage”. Many believe that after a period of living together, often as short as six months, that provides them with the ability to make legal claims against their partner as a ‘’common law spouse’’ in the event of a relationship breakdown. However, this belief is part of the common law marriage myth. Under the laws of England and Wales, it makes no difference whether a couple has been living together for one week or 20 years – there is no concept of “common law marriage” that gives rise to automatic legal claims based on cohabitation, unlike the rights available to legally married couples. For more on the legal differences between cohabiting and married couples, visit Citizens Advice web page.

Legal Marriage and Its Consequences

The only way to create a legally binding marriage is to follow the requirements set out in the Marriage Act 1949 or Marriage (Same Sex Couples) Act 2013. Where these requirements are met, in the event of a relationship breakdown the claims that can be automatically brought are significantly wider than those available to unmarried partners.

Property and Financial Claims in Marriage vs Cohabitation

An unmarried partner does not automatically have a right to make a claim against a property held in the other person’s name, whereas a married partner does. Marriage creates a legal connection between partners which means in the event of a marriage breakdown, one can bring a claim against the other for financial support. That can include claims for maintenance (for themselves in addition to any child support payable), property, a lump sum payment or a share of the other person’s pension. A married person also has a claim against the estate of the other in the event of their death. None of these claims are automatically available to unmarried cohabiting couples.

Legal Limitations for Unmarried Couples

For unmarried couples, their legal ability to pursue financial support from the other in the event of a relationship breakdown is much more limited under Acts of Parliament such as the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) and Schedule 1 of the Children Act 1989 (CA). Even then, claims cannot automatically be brought and will be fact dependent upon the circumstances of the unmarried couple. Even if unmarried couples do not separate and continue their relationship until the death of one, in the absence of a will the surviving partner has no automatic right to inherit any aspect of the deceased’s estate (including any property in which they may be living but is held in the name of the deceased). They may find themselves having to move out of a property in which they have lived for many years, following the death of a partner with limited ability to making a claim against the estate.

What Claims Can Be Brought for Unmarried Couples?

In a TOLATA dispute, where a property is held in the sole name of one person, an application can be made for the non-owning partner to establish a beneficial interest in a property. As part of that process a court will consider issues such as whose name is on the legal title, financial contributions parties have made towards a purchase and mortgage, renovations, the intention of the parties in respect of ownership and their conduct. The mere fact that unmarried partners may have been living together for an extensive period of time in itself does not automatically create any type of interest in a property and in the event of a dispute, the court will look at what is known as the whole course of dealings between both as part of considering the above.

Financial Claims for Children

In a Children Act (CA) claim, where a couple have children together, one parent may make a financial claim against the other on behalf of a child. Those claims can include payment of a lump sum, transfer or settlement of a property and for child support payments on top of any payments that are established through the use of the Child Maintenance Service. Any claims brought under the CA centre upon the needs of the child and not any right of the parent.

Child Maintenance Rights

Regardless of any relationship status, one parent is always able to bring a claim for child maintenance payment through the Child Maintenance Service scheme. Any liability to pay in respect of the non-resident parent is calculated based upon gross income and the length of time the children spend with the absent parent.

Other Legal Avenues for Unmarried Partners

It may be possible in certain circumstances for an unmarried partner to bring a claim against the other for breach of contract or what is known as an equitable claim through a concept called a Proprietary Estoppel, which is where one party has been made to believe that they would receive an interest in a property owned by the other and have acted to their detriment in reliance upon that promise.

Legal Protection Orders

In all cases, any partner can bring proceedings for their protection through the courts for what is known as non-molestation and occupation orders under The Family Law Act 1996.

Inheritance and Dependency Claims

In the absence of a Will, an un-married partner does not automatically have the right to bring a claim against the estate of the other in the event of that person’s death. However, there are provisions that allow such a claim if they were living together as if they were married or civil partners for a certain period prior to death and were financial dependent upon the deceased.

Planning Ahead: Legal Tools for Cohabiting Couples

To avoid the consequences of the common law marriage myth, cohabiting couples should take proactive legal steps. It is very important that unmarried cohabiting couples consider how they want their relationship on a financial level to be dealt in the event of a relationship breakdown and on the death of the other. In order to provide legal protection, cohabiting couples should consider entering into a Cohabitation Agreement which specifies their rights and obligations in relation to a specific property, agreeing an express Declaration of Trust which sets out how an asset is beneficially owned and how it should be shared in the event of it being sold and consider preparing a will setting out how they wish their estate to be dealt with on their death. It is also important for unmarried couples to consider taking out life insurance, as the death of one may lead to a drastic loss of income.

Cohabitation Agreements for Married Couples

Married couples are also free should they wish to enter into Cohabitation Agreements, specifying the financial arrangements in the event of a marriage breakdown. However, under the Laws of England and Wales, Cohabitation Agreements are not automatically legally binding in the event of a divorce where a court retains the legal power to impose a settlement beyond that contemplated within the agreement. This is due to the wide discretionary powers judges hold under the Matrimonial Causes Act 1973 that applying to divorcing partners. Those same discretionary powers do not apply to unmarried cohabiting couples.

Final Thoughts: The Importance of Legal Advice

The common law marriage myth continues to mislead many couples. It is vitally important for any couple considering cohabitation whether they are married or not, to consider taking specialist legal advice about all of the matters set out above. It is particularly important for unmarried cohabitees, given the very limited legal options available in the event of a breakdown of their relationship or death of the other partner. The concept of a common law marriage is a complete fallacy and it is far better to put in place mutually agreeable arrangements within an ongoing relationship rather than trying to establish those arrangements after the relationship has broken down, which frequently leads to significantly increased legal fees and court proceedings. They can be avoided with careful and well thought through future planning and express and clear agreements being reached.

Learn More About Legal Protection for Cohabiting Couples

Our divorce and family lawyers are able to advise former cohabitees as to their respective entitlements on the breakdown of their relationship. Visit our dedicated cohabitation page for more information on our expert guidance and support.