Debunking the Myth of Common Law Marriage

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Around half of people in England and Wales believe that unmarried couples who live together for a long time get the same legal rights as married couples under a “common law marriage”.

This is wrong. In the UK, there is no such thing as common law marriage. In fact, unmarried couples – even those who have lived together for decades – have no automatic relationship rights whatsoever. This means if you are unmarried and you break up or your partner sadly dies, you could potentially be left in dire financial circumstances.

Myth – if you live together, you are “common law married”

The population of unmarried cohabiting couples increased by 25.8% between 2008 and 2018, making it the fastest growing and second most prevalent type of family unit in the UK. Despite this, the law still lags far behind the reality of our living situations. As half an unmarried couple, you do not automatically receive any rights in relation to money or property which is owned solely by your partner. Laws relating to parental responsibility for children and inheritance also differ depending on your marital status.

Although it is unpleasant to think about breaking up with someone you love or them passing away, it is always a possibility. It is therefore critical to fully understand your legal position and whether you can do anything to protect yourself (short of actually getting married), particularly if one of you owns fewer assets, earns less than the other, or you have children.

Your rights explained – the differences between marriage and cohabitation

Your legal rights regarding money and finances, property and assets, inheritance, and children differ depending on whether you are married/in a civil partnership or unmarried:

Money and finances

Marriage – Your money, both accumulated prior and during the marriage, will be viewed as part of the “matrimonial pot” regardless of whether it is held in separate accounts.

If you get a divorce then you will need to come to an agreement about the fair division of assets. What is “fair” will not necessarily align with who owns what. You should instead consider factors such as:

What were the financial and non-financial contributions made by each partner during the marriage?
What is each partner’s earning capacity and future earning capacity?
Does either partner have any physical or mental disabilities?

If your partner dies during the marriage, you may be able to withdraw the balance of their individual bank accounts (if the amount is small).

Cohabitation – Your money (if held in individual bank accounts) will be yours alone. This is the same for your partner. If you break up, you will not be entitled to any money belonging solely to them, and if they die, you will not be able to access their accounts.

If you and your partner open a joint account, both of you will have access to the money regardless of who contributes what. However, if you later break up, you will need to come to an agreement about how to split the money.

Property

Marriage – As property and assets must be divided fairly upon divorce, you may be entitled to a share of your partner’s property even if it is owned solely in their name.

Cohabitation – You will have no automatic rights to your partner’s property even if you live there. There have been cases of people being forced to leave their home after decades so their former partner can sell it.

Pensions

Marriage – As with all other property, pensions must be shared fairly upon divorce. This means you may be entitled to some of your partner’s pension benefits even if you have no pensions of your own. Similarly, if you have not made enough contributions to get your own state pension, you can claim one through your partner’s National Insurance (even if you get divorced unless you later remarry). If your partner dies, you can automatically inherit their pension benefits.

Cohabitation – You have no automatic rights to your partner’s pensions and vice versa. You cannot claim a state pension through your partner’s National Insurance contributions. If your partner dies, you will not inherit their pensions unless they specifically make you a beneficiary.

Inheritance

Marriage – Unless your partner leaves a Will specifying otherwise, you will automatically be the first person to inherit from their estate. If your partner leaves their estate to you in their Will, you will pay no Inheritance Tax. Your late partner’s unused tax-free allowance (currently £325,000) will also be added to your own tax-free allowance.

Cohabitation – If your partner dies without leaving a Will, you cannot inherit. If you have children together, they will inherit first. If you have no children, your late partner’s close relatives will inherit.

The only way you can inherit is if your partner leaves a Will making you a Beneficiary. However, you will not be entitled to Inheritance Tax relief and you cannot make use of their tax-free allowance when doing your own estate planning.

Children

Marriage – The birth mother of a child will automatically get parental responsibility (the right to make decisions about the child’s upbringing). The married partner or civil partner of the birth mother will also automatically get parental responsibility.

Cohabitation – A father or second parent who is not married or in a civil partnership with the birth mother of their child will not automatically get parental responsibility. They can only obtain parental responsibility if their name is put on the birth certificate, if they sign a Parental Responsibility Agreement with the mother, or if the court makes a Parental Responsibility Order.

A parent without parental responsibility cannot make important decisions about their child’s upbringing, including decisions about their education, health, and discipline.

What can cohabiting couples do to protect themselves?

Although unmarried couples cannot access the full range of legal benefits given to married couples and couples in civil partnerships, there are many ways you can protect yourself:

Enter into a Cohabitation Agreement – Also known as a Living Together Agreement, this is a legal document which sets out who owns what and how finances and property should be divided if you later break up. Although not officially legally binding, a court is likely to uphold a Cohabitation Agreement if it was freely entered into and both parties took independent legal advice.
Make a Will – this is the most important thing you can do to ensure your wishes are respected after you die. Your partner cannot inherit your money or property unless you take this vital step.
Share finances – If you have been together many years and trust each other with each other’s money, consider creating joint accounts and combining your finances. If your partner dies, you will still have access to the account and can withdraw its contents. Beware though, your partner’s credit score can affect yours and if you break up, both of you will still have access to the money in the account.
Make your partner a beneficiary of your pensions and life insurance – if you are unmarried, they cannot inherit unless you specifically name them as a beneficiary
Make sure the father or second parent’s name is put on the birth certificate of any children – Unmarried fathers and second parents should accompany the birth mother to register their child’s birth to ensure their name is put on the birth certificate. Unmarried mothers can register the birth of a child without the father. However, the father’s details can sometimes be added later on.

Do you need advice about cohabitation and your legal rights?

At Atkins Hope, we have a team of highly skilled family law solicitors who can provide advice about cohabitation and your legal rights. Whether you are looking to protect yourself or you are involved in a cohabitation dispute with a former partner, we will make you aware of all your options and suggest a course of action designed to achieve the best outcome possible.

For both cohabitation agreements and dispute resolution, methods of Alternative Dispute Resolution can be effective for helping couples sort out their issues swiftly and cost-effectively. Our Head of Matrimonial Law, Juliet Adelman, is a qualified mediator and a member of Resolution. Our other members of Resolution include Kelly Rodd, Priya Baskaran, and Maria Orme.

For further information, please get in touch with our family law solicitors in Croydon, Medway, Blackheath and Guildford today.