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No such thing as common law marriage

View profile for Phoebe Trott
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No such thing as common law marriage

Boris Johnson and Carrie Symonds are the first unmarried couple to live at No.10 Downing Street. However, this does not come as a surprise as there is a steady increase in the number of cohabiting couples in the UK.

According to a recent study conducted by the National Centre for Social Research, a staggering 46% of individuals in England and Wales are unaware of the ‘myth’ of common law marriage. This shows that almost half of those living in England and Wales believe they have the same rights on relationship breakdown as married couples.  Unfortunately, this is a mistake, as cohabitation does not alter a couple’s legal status, whereas marriage does.

In what ways do cohabiting couples’ rights differ?

  1. There is no right to maintenance (except for child maintenance) for cohabiting couples, whereas married couples have the right to seek spousal maintenance. Cohabiting couples have no automatic legal responsibility to support each other financially.
  2. If an unmarried partner dies without making a will, the surviving partner will not automatically inherit their estate, including any pensions. In comparison, married couples who die without making a will automatically inherit the bulk of their spouses estate, free of inheritance tax. There is no such provision currently available for cohabitees. 
  3. An unmarried partner has no automatic claim against property or assets held in their partner’s sole name. If an unmarried couple buys a property together, it is important to ensure it is registered in both parties’ names. If not, it will be hard to assert that the non-owing partner has an interest in the property. This can be true even where the couple has lived in the property for many years.
  4. Cohabiting couples can choose to end their relationship without any court involvement. Married couples have to go through the court process of divorce proceedings when they wish to formalise their separation.
  5. A cohabiting father does not have automatic parental responsibility for a child, unless he is named on the child’s birth certificate. Parental responsibility determines the legal rights and responsibilities a parent has for their child. If the father is not named on the birth certificate then he will have to request a parental responsibility order via the courts, or sign a parental responsibility agreement with the child’s mother. In contrast, a married father has automatic parental responsibility for his child.

As you can see there are stark differences between cohabiting couples and married couples. There is no such thing as common law marriage. No matter how long you have been cohabiting in a relationship with your partner, whether it be 5 months or 15 years, whether you have children together, or the way in which your finances are managed, unmarried couples are not afforded the same rights as married couples.

What options are there for cohabitees?

An unmarried couple can enter into a cohabitation agreement which sets out each party’s rights and responsibilities in relation to their property, finances and children. The agreement details the arrangements both during the period of cohabitation as well as what happens if the couple decide to end the relationship.

Entering into a cohabitation agreement can reduce the possibility of a dispute arising over who owns what property if the period of cohabitation ends or when one partner dies.

If you are considering cohabiting with a new partner and would like to make a cohabitation agreement, then speak to one of our specialist family lawyers across Essex. We offer a free, no obligation 15 minute telephone consultation.

I am based in our Colchester office and can be contacted on 01206 217389 or phoebe.trott@birkettlong.co.uk.

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