One of the most common misconceptions we encounter is the belief that couples who live together for a certain period of time become “common law spouses” and acquire the same...
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One of the most common misconceptions we encounter is the belief that couples who live together for a certain period of time become "common law spouses" and acquire the same rights as married couples.
Unfortunately, this is not true. Despite the widespread use of the term "common law husband" or "common law wife", there is no such legal status in England and Wales.
This misunderstanding can have serious consequences when relationships break down or when one partner dies unexpectedly.
What is a common law marriage?
In short, it does not exist. Many people believe that if they live together for several years, have children together, or share finances, they automatically gain legal rights similar to those enjoyed by married couples.
However, under current law, cohabiting couples do not benefit from the same legal protections as married couples or civil partners, regardless of how long they have been together.
A couple may have lived together for 20 years, raised children, and built a life together, but that alone does not create the legal rights associated with marriage.
Why does the myth persist?
The misconception is understandable. Modern family life has changed significantly. More couples than ever choose to live together without marrying, and many people assume the law has evolved accordingly.
In reality, the law has not kept pace with social change. Recent government proposals recognise this issue and are exploring whether cohabiting couples should receive greater protection when relationships end. You can read more about these proposed reforms in our article: A Fairer End to Relationships? What the Government's New Family Law Consultation Could Mean for Families.
However, until any changes are implemented, the current legal position remains unchanged.
What rights do cohabiting couples actually have?
The answer depends on the circumstances. Unlike divorcing spouses, cohabiting couples cannot generally ask the Family Court to divide assets based on fairness, needs, or contributions to the relationship.
Instead, disputes are often determined using property and trust law. This means that legal ownership of assets can become critically important.
The family home
One of the most common issues arises when a couple separates and one party believes they have an interest in a property that is legally owned by the other.
The outcome may depend on factors such as:
- Whose name appears on the title deeds;
- Whether there is a declaration of trust;
- Financial contributions towards the purchase price;
- Contributions to mortgage payments;
- Evidence of any agreement or understanding regarding ownership.
These cases can be legally complex and highly fact-specific.
Financial support
Married couples can apply for spousal maintenance following divorce. Cohabiting couples generally cannot. Even where one partner has sacrificed career opportunities to support the family, there may be no entitlement to ongoing financial support after separation.
Pensions
Pensions are often among the most valuable assets in a relationship. Upon divorce, pension sharing orders can be made by the court. For unmarried couples, these remedies are generally unavailable.
Inheritance
If a married person dies without a will, their spouse may inherit under the intestacy rules. Cohabiting partners do not enjoy the same automatic protection. This means a surviving partner could find themselves facing significant uncertainty at an already difficult time.
What about children?
Parents' rights and responsibilities towards their children do not depend on whether they are married. Both parents may have obligations to financially support their children, and arrangements for children following separation can be determined regardless of the parents' marital status.
However, the position regarding financial claims for the benefit of children can be complex and specialist advice is often required.
How can cohabiting couples protect themselves?
Although the law currently offers limited protection, there are practical steps couples can take.
Cohabitation agreements
A cohabitation agreement can record how finances will be managed during the relationship and what should happen if the relationship ends. While discussing these issues may feel uncomfortable, having clarity at the outset can help prevent costly disputes later.
Declarations of trust
Where a property is purchased jointly, a declaration of trust can set out each person's ownership share and what should happen if the property is sold. This can provide valuable certainty and reduce the risk of future disagreements.
Making a will
Every cohabiting couple should consider putting appropriate wills in place.
Without a will, a surviving partner may have no automatic entitlement to inherit.
Could the law change?
Possibly. The Government is currently consulting on proposals that would introduce new legal protections for cohabiting couples when relationships end.
If implemented, the reforms could provide greater financial security for many unmarried families and address some of the gaps in the current law. However, any changes are likely to take time and there is no guarantee that the proposals will become law.
For now, cohabiting couples should not assume that they have the same rights as married couples.
How Sharp Family Law can help
Whether you are moving in together, purchasing a property with a partner, considering a cohabitation agreement, or facing the breakdown of a relationship, obtaining early legal advice can make a significant difference.
At Sharp Family Law, we regularly advise cohabiting couples on property disputes, cohabitation agreements, financial claims involving children, and separation arrangements.
If you would like to discuss your circumstances with one of our specialist family lawyers, please get in touch.
