What is a common law marriage?

What does common law marriage mean?

A common law marriage is a concept that refers to a long-term, marriage-like relationship where the couple have lived together for a significant amount of time but without the couple having formally registered the relationship.

Some people in this situation may think of themselves as a ‘common law wife’ or ‘common law husband’, and there is a widely held belief that these relationships provided the same legal protections as a formal marriage.

However, this is not the case, and a ‘common law marriage’ will not provide you or your partner with any legal protection in the event of a relationship breakdown.

What is common law marriage recognised in the UK?

In England and Wales, there is no such thing as a common law marriage. Unless you are legally married or have a registered legal partnership, there are no legal rights or obligations to each other. This includes the division of financial assets if you separate or if one of you dies, regardless of how long you have lived with a partner.

Due to this, if you are in a cohabiting relationship, it is important to be aware of your legal position in relation to assets, as this might not be what you expect. For example, if you are not registered as an owner of the property you reside in, you do not have any automatic right to a share of the equity, no matter how long you have lived there, or even if you have children together.

There are some situations where one cohabiting partner (or ex-partner) can make a claim against the other, in relation to property or on behalf of children, however there are limits to both types of claims.

Law changes in Scotland

In 2006, the Family Law (Scotland) 2006 was introduced, which provided some cohabiting couples certain legal rights upon separation or death of a partner. This includes:

• Household goods bought while the couple lived together will be considered jointly owned and shared equally
• Where couples made decisions that could financially impact one more severely than the other in the event of separation, such as one partner taking time out of work for childcare, financial provisions should be made
• There are protections for a surviving cohabiting partner regarding estates in the event their loved one passes away without a will

To be covered by this law, ‘cohabitants’ must be able to show that they’ve been living together as though husband and wife (or civil partners), and the court will consider the length of this arrangement and the nature of any financial arrangements between the two parties.

Does a common law wife or husband have any rights?

As common law marriages are not legally recognised in the UK, a common law wife or husband often does not have any automatic rights in the event the relationship breaks down or their partner dies.

There are some cases where a claim could be made by one cohabiting partner, though this is not always a guarantee.

Property rights

While a married spouse or civil partner may have legal rights to property, even if it is solely owned by the other party, cohabiting partners do not. In certain circumstances, a dispute could be raised – for instance, if you’ve financially contributed to the payment of the mortgage or upkeep of the property, it could be argued that you have a beneficial interest in the property.

Parental rights

If you are cohabiting with a partner and have a child together (but are not married or in a civil partnership), parental rights and responsibilities may work slightly differently.

A mother automatically has parental rights for their child at birth, but unmarried fathers do not. Their name must be on the birth the certificate to have parental rights.

Benefits and tax

Cohabiting couples are not considered connected individuals by the HMRC, so it means you aren’t eligible to claim certain entitlements, such as Marriage Allowance. However, as some means-tested benefits (like Universal Credit) are claimed on behalf of the ‘family’, it can be possible to claim as a cohabiting couple.

Inheritance rights

Partners who aren’t married or in a civil partnership have no automatic right to their partner’s estate unless explicitly stated in the will, even if they have children together or have lived together for a significant period.

It can be possible, however, for the surviving partner to make a claim against the estate if it can be argued that they financially depended upon their deceased partner and require ‘reasonable’ financial assistance.

Pension rights

There is no automatic entitlement to your partner’s state pension if you are cohabiting.

For an occupational pension, your partner could name you as the person to receive the pension pot if they were to pass away before it is used, or they may wish to arrange a ‘survivor pension’ for a financially dependent partner.

What can cohabiting couples do to protect themselves?

There are ways in which couples can protect themselves and that is by considering how their respective interest in a property will be held.

One way to protect yourself if you share a home with a partner is to agree in writing what shares each of you have. Alternatively, you could agree how to deal with assets by making a cohabitation agreement.

Cohabitation agreement

A cohabitation agreement can set out what each party’s rights and responsibilities toward one another in the event of separation.

It can include things such as arrangements for how quickly either party might have to move out of the family home, whether either would have the ‘first call’ on buying out their ex-partner, and how home contents would be split.

If this is not done, then claims in relation to property can be expensive as, if parties are unable to agree, the only option is to issue legal proceedings relying on TOLATA (Trusts of Land and Appointment of Trustees Act 1996) or by relying on property law and the principles of constructive trusts and proprietary estoppel to establish that a cohabitee has an interest in a property. These processes can be quite rigid and may not result in the desired outcome.

Protecting your ‘common law marriage’ rights

The Law Commission has acknowledged that with more couples cohabitating, there should be changes to the law to protect cohabitees. However, no legislation has been put in place to protect them, so it is important, if you do live with a partner but are not married, that you consider your legal position.

No one expects their relationship to break down, but knowing where you would stand if it were to happen can help you to plan ahead – for instance, knowing what share of the house you would each be entitled to may be relevant in helping you decide what each of you will contribute towards the mortgage bills, what arrangements you will put in place if you have children etc.

Our family law experts are on hand to offer any advice you need. Contact us today.