The Myth of ‘Common Law Marriage’

A recent study carried out by The National Centre for Social Research – revealed that 46% of people in England and Wales believe that cohabiting couples form a ‘common law marriage’ that gives them legal protection. The belief assumes that, if you have been living together for a long time you must have the same legal rights over finances and property after you break up as if you’d been married.

It’s a Myth.

Through Hollywood films and TV – remember the famous, “I’m taking the dog” scene from Legally Blonde where Reese Witherspoon uses this legal principle to regain custody of her friend’s beloved puppy – the ‘common law marriage’ has become widely known in England & Wales. However, it doesn’t apply. The reality is that, no matter how long you live with someone, and shared your lives together as a cohabitating couple, you do not have the same rights and protection that married couples do.

Those legal difference between married couples and cohabiting couple can be further evidenced as follows:

  • Married couples need to go through an administrative legal process to regain their status as single. Cohabiting couples do not.
  • Married couples can rely on the protection of spousal financial support or maintenance if there is a big difference in incomes and needs. Cohabiting couples can’t, as there is no automatic legal responsibility or liability to financially support each other.
  • Married couples have special inheritance and pension legal rights, if their spouse dies. Cohabiting couples have no such automatic entitled to their partner’s assets or pension upon death.
  • When married couples divorce, generally all assets, including those owned by each, go into the marital pot to be divided. This includes houses. Cohabitants do not have an automatic right to a share of property held in their partner’s sole name on separation. This holds true even if the couple moved into the house many years previously and helped to pay the mortgage and household bills each month.
  • A cohabiting father does not have automatic parental responsibility over his child unless his name is on the child’s birth certificate. Instead, he must request a parental responsibility order through the courts or sign a Parental Responsibility Agreement with the child’s other parent.

When it comes to sorting finances on break up, cohabiting couples often must rely on complicated land and trust laws to determine disputes – even for crucial and fundamentally important issues such as the ownership of the family home. As these laws were not originally designed for the specific needs of cohabiting couples, it can be a very complex area, and uncertain outcomes as to the ownership of property.

As cohabiting couples are one of the fastest growing family types in the UK, it is a good idea to understand what legal status your relationship has, and what it means for your future if you were to break up.

If you are either considering cohabiting with a new partner, or leaving them, come and speak to one of our team about how you might still be able to protect what’s important to you.

Article by Madison Fowler

Madison works with clients, who want a constructive process and a long-term solution that enables them to co-parent effectively and move forward with their live. Her aim is to protect clients and what is important to them without generating additional conflict or unnecessary costs.