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The myths surrounding ‘common law marriage’ – where do you legally stand?

Posted
Family Law

A study carried out this year by The National Centre for Social Research has revealed 46% of the public believe that couples that cohabit (living together without being married) form a ‘common law marriage’, a figure that has been fairly consistent for the last 14 years. People are also more likely to believe in ‘common law marriage’ when children come into the equation, with 55% of households with children thinking that common law marriage exists and 41% of households without any children believing ‘common law marriage’ exists.

The most recent figures from the Office for National Statistics (ONS) from 2017 showed that there were 3.3 million cohabiting couple families living in the UK in 2016, making it the second largest family type and accounting for 17% of all families in the UK. Cohabiting couples were also the fastest growing family type during the last 20 years increasing from 1.5 million couples cohabiting in 1996.

Worryingly, of those that believe in ‘common law marriage’, 48% of them are cohabiting couples. A couple that lives in the UK that isn’t married or in a civil partnership usually won’t have the rights of their married or civil partnered counterpart.

In 2017, it was reported that unmarried couples with children made up one in five of all parents but accounted for more than 50% of splits that involve children, an increase of 5% from 10 years earlier. Figures from 2016 show that 1.25 million cohabiting couples had dependent children.

With the UK having one of the highest levels of family breakdowns in Europe, what rights do you have as an unmarried, cohabiting couple, with or without children?


Splitting up with your cohabitee partner

When you split up as a cohabiting couple there is no legal obligation to support each other financially, something that can be very difficult depending on the family circumstances and especially tricky when children are involved.

Any financial matters between you will be resolved by property law and trust law principals albeit it may be possible to apply to the Court for financial assistance for the benefit of any children (under the age of 18) under Schedule 1 of the Children Act 1989 in some circumstances. You do not have any legal right to stay in the rented accommodation if you are asked to leave by your partner who is the tenant. If your partner owns the home, you have no legal right to it and would have to show that you have an interest in the beneficial ownership of the property under trust laws which is difficult to prove as the law is complex.

One cohabiting partner dies

If you are cohabiting and your partner dies, you will not be able to automatically access you partner’s bank account and if they die without leaving a Will, the surviving partner will not automatically inherit anything - unless the couple jointly own property.

When children are involved

If you are not married and have a child together, even if you’re named on the child’s birth certificate, you will only have parental responsibility if your child was born after 1st December 2003. To acquire that legal status, you will need to make an application to the court or enter into a Parental Responsibility Agreement with the other parent.


Other differences

Other differences between cohabiting couples compared to married couples include not automatically benefitting from any inheritance the other partner receives, and not benefitting from inheritance tax or the marriage allowance.


With so much ambiguity around ‘common law marriage’, many have called on the law to be upgraded due to more couples now cohabiting. The Cohabitation Rights Bill is currently progressing with, at present, a date to be announced for the Bill to have its second reading in the House of Lords.

The family law team at stevensdrake provides advice to separating cohabitees and assists them with dividing their property based on property law and trust law principles. This is often a complex area of law and the team can provide expert advice tailored to your particular circumstances. Visit our family law page for more information and to read some frequently asked questions.

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