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Debunking the myth of common-law marriage

Cohabitation is often mistakenly referred to as a ‘common-law marriage’ – this is where couples believe that living with a partner for a period of time confers legal and financial rights that are the same as the ones received from a marriage or civil partnership.

These ‘marriages’, however, do not exist.

As they do not exist, this legal void affects around a fifth of UK couples, with cohabitees making up approximately 3.6 million couples – and you could be one of them.

If you do not want to enter a marriage or civil partnership but wish to live with your partner and receive the same legal rights, you will need to seek out a cohabitation agreement.

It is important you understand what rights you have as a cohabiting couple, and whether marriage/civil partnership or a cohabitation agreement is right for you.

The current position

Under current UK law, unless a couple enter into a civil partnership or marry, they do not have the same financial claims as a married couple of civil partners.

Cohabitants will normally only have two possible heads of claim, regardless of the period of cohabitation:

Property ownership
Financial support for children

It is important to remember that neither of these claims stem from the relationship itself.

What are my legal rights as a cohabiting couple?

There aren’t many legal rights you have which is why you need to seek a cohabitation agreement if you wish to have the same rights and financial claims as married or civil partnership couples.

Due to the current legalities surrounding this situation, cohabitating couples might find one party is significantly disadvantaged and vulnerable if separation should occur.

Cohabitation complexities affect all kinds of unmarried same-sex and opposite-sex couples.

For example, cohabitees who forgo their salary to act as homemaker/ interrupt their career to care for children can become vulnerable and significantly disadvantaged if they separate from their partner.

If you equally contribute to family finances, you might also be affected.

You might be left unprotected should your relationship breakdown if your partner pays the mortgage of a property held solely in their name whilst you meet all household expenses.

Unlike married couples and civil partners, your list of financial claims will not be full.

You cannot apply to court for a pension sharing order if you wish to divide pension assets, for example.

This might lead to one party being substantially deprived at the time of retirement and will foster the gender pensions gap.

There could also be succession implications which you need to take into consideration.

This is because cohabiting partners are not entitled to the same Inheritance Tax, Capital Gains Tax and Stamp Duty Land Tax reliefs as married couples and civil partners are.

Under the doctrine of survivorship, a spouse’s estate will automatically pass to their surviving spouse if they die without having made a Will.

Cohabiting couples are not awarded the same protection, however.

Additionally, a married father will automatically acquire ‘parental responsibility’ on the birth of a child – this means they get the rights, duties, powers, responsibilities, and authority of a parent in relation to a child.

A cohabiting father, on the other hand, will not acquire parental responsibility unless he is registered on the birth certificate or enters into a parental responsibility agreement.

The solution

Ultimately, the solution for cohabiting couples to receive the same legal rights and financial claims as those married or in a civil partnership is to obtain a cohabitation agreement.

This is a legal document between unmarried couples who live together and sets out the arrangements for finances, property, and children while you’re living together and if you split up, become ill, or die.

You can make an agreement at any time but it is good to do it before you move in together.

Our family law solicitors can help you to prepare this agreement and make sure it is legally binding.

It is crucial you know that cohabitation agreements can also be made between people who not romantically linked, such as friends or siblings.

An agreement can make sure you have:

A share of each other’s assets
Access to each other’s state pension
Next of kin rights in a medical emergency

The process of creating a legally binding cohabitation agreement can vary in length but there are some ways you can protect yourself and your partner in the meantime:

Consider putting Wills in place and taking out life insurance
Ensure both parties are named on the legal title to a relevant property
Consider entering into a declaration of trust, for example in circumstances where a jointly owned property is held in unequal shares or where a party is not a registered legal owner
Consider entering into a cohabitation agreement, where you can record your financial and living arrangements both during cohabitation and on separation.

Understanding cohabitation can be complex but it is important you seek specialist legal advice from our experts in order to protect your position under the current laws.

If you would like to know more about cohabiting couples and what they are entitled to, please contact a member of our team today.

Stuart Daniel

Director – Head of Family Department

I qualified as a Solicitor in 2006 and now specialise in divorce, financial settlements, childcare arrangements and Pre Nuptial Agreements. I have many years’ experience as a private family lawyer having worked with two other local firms before returning to Mander Hadley, where I first undertook work experience during my university studies.