Around 1 in 4 couples now live together but have chosen not to marry or enter into a civil partnership. Many people believe that they establish “common law” rights instead, but what does “common law marriage” mean and does a “common law marriage” really exist?
Does a “common law marriage” protect cohabiting couples?
No! It’s a common misconception that couples who live together, or “cohabit”, automatically acquire rights and protections that are the same as married or civil partnership rights – for example, a right to inherit the money and property of your partner if they die before you, or a right to claim maintenance payments or take a share of any savings or investments should you split up.
But “common law marriage” doesn’t exist in law, and so it’s essential that cohabiting couples who are not married or in a civil partnership take steps to protect your own interests and the interests of those close to you, such as children, in the event that one partner dies or your relationship breaks down.
Are there any automatic rights for cohabiting couples?
There are very few rights granted to cohabiting couples under current law. Simply being in the relationship, even for a long period of time, is not enough to establish a claim in property owned by the other partner. For example:
- If the relationship breaks down, you won’t have an automatic claim to any property that the other party owns in their own name, such as a home, their pension, savings or investments
- You don’t have a legal right to any maintenance payments for yourself, although child maintenance arrangements do apply to both married and unmarried partners
- If a partner dies without leaving a Will, their estate will automatically pass to their next of kin, and not their cohabiting partner
Women have been identified as particularly at risk from the lack of automatic rights granted to cohabiting couples, having often reduced their working hours or given up work altogether to care for children which leaves them exposed to financial insecurity.
How can cohabiting couples protect themselves & their families?
Although there’s little automatic legal protection for cohabiting couples, you can – and should – take steps to protect your family’s interests for the future.
- Make a Will! Make sure your estate goes to the people you care about after your death by setting out your wishes in a Will, such as who will inherit your share in a family home, who is to benefit from any savings or investments, and nominate a guardian for children under 18
- If you’re buying, or you already own, a home, agree with your partner how you will split your interests in this if your relationship breaks down or one of you dies, and make a formal “Cohabitation Agreement” to set out how your interests will be shared. You can include plenty of other information in this too, such as how children will be cared for and by whom, when the home may be sold, and child maintenance payment arrangements
- Take legal advice to explore other options depending on your circumstances. You may choose to make a Declaration of Trust if you own property in unequal shares, or review your life insurance policy to make sure it offers the protection you and your family need
Will the law change?
The number of cohabiting couples has risen rapidly over the last 10-15 years, resulting in ongoing discussion about how greater protection can be offered to unmarried partners.
In 2022, a report was issued by a cross-party group of MPs that called for legal reform to protect partners in the event of a relationship breakdown, and organisations such as Resolution Together actively campaign for changes in the law. The debate continues about what reform should look like, and how this could be implemented.
This article has been prepared by Adroit Legal Services and is not intended to constitute legal advice.
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