Common Law Marriage and Cohabitation

The family law solicitors at Evolve Family Law are regularly consulted about common law marriage rights by unmarried partners and former cohabitees. In this article, we look at the myth of common-law marriage.

Contact Evolve Family Law Today for Cohabitation Law Advice.

What is common law marriage?

Legally, there is no such thing as a common-law marriage. Common law marriage is a myth. In English family and property law, common law marriage is not a legally recognised concept.

If you are cohabiting with an unmarried partner, you do not get rights as a cohabitee if you view yourself as being in a common-law marriage with your partner.

An unmarried relationship does not become a common law marriage because of the number of years you have been living together. You do not get common law marriage status whether you have been in a cohabiting relationship for 2 years or 20 years.

Cohabitation rights

If you don’t get cohabitation rights through common-law marriage, how do you get cohabitation rights? Family agreement solicitors say there are ways to get rights as an unmarried partner, but it is best to understand how you can get those rights before you:

1. Move in with your partner.
2. Have children together.
3. Rule out getting married or entering a civil partnership.
4. Buy a property together.
5. Make significant property, pension or financial decisions.
6. Make a Will.

Unfortunately, too many unmarried couples only find out about their cohabitation rights (or lack of them) after they split up with their partner.

Getting rights as an unmarried partner

As an unmarried partner, your cohabitation rights can come from:

1. Joint property ownership – you can jointly own property either as tenants in common or joint tenants. The way you own property can significantly impact what happens to it if you split up or if one of you passes away. That’s why it is best to take family law legal advice before you jointly buy a property as an unmarried couple.
2. Sole property ownership – you can claim a share of a property even if it is owned in the name of your partner. A claim can potentially be made under property or trust law if you can show that you have an equitable interest in the property.
3. A cohabitation agreement or deed of trust – if you reach an agreement with your partner, either at the outset of your relationship or during it, you can set out your agreement and rights in a cohabitation agreement (or deed of trust if the agreement relates solely to a specific property).

If you have dependent children with your unmarried partner, you may also have the right to claim:

1. Child support through the Child Maintenance Service or through the family court if the Child Maintenance Service does not have jurisdiction, or if the Child Maintenance Service has made a maximum assessment under their child support formula. If the Child Maintenance Service makes a maximum assessment, you can apply to the family court for top-up maintenance.
2. Lump sum payment to meet a child’s specific needs.
3. Housing for the child whilst the child is dependent – this type of housing provision ends when the child is age 18 or 21.
4. School fee payments if your child is being educated privately.
5. Disability-related extra costs of caring for a child with a disability.

The bottom line is that, however long your unmarried relationship lasted, you do not have the same legal rights as a civil partner, husband, or wife. For example, as an unmarried partner, you cannot claim:

1. A share of the family business – unless you are a shareholder or a business partner, or you can successfully argue that ownership of all or part of the business was held in trust for you.
2. A share of your partner’s pension.
3. Spousal maintenance.
4. A share of investment portfolios held in your partner’s sole name unless you can argue that the investments were held in trust – something that is very hard to do.

Disputed cohabitation rights

In cases involving unmarried partners, the family court must follow property and trust law to resolve disputes over ownership. If you are married or in a civil partnership, the family court looks at a range of statutory factors to achieve fairness. That’s why in divorce proceedings, the court can exercise a lot more discretion, and there is less likelihood of one partner walking away with nothing after a long relationship.

If you are engaged to marry or married and you do not like the idea of the family court having such a degree of flexibility in divorce financial settlement proceedings, you can either sign a prenuptial agreement or a postnuptial agreement to record how family assets should be split if you separate.

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Cohabitation rights and estate planning

If an unmarried partner dies without making a Will (intestate), the surviving cohabitant has no automatic right to their partner’s estate. The surviving partner could claim a share of the deceased’s estate, but this would involve court proceedings against the deceased’s relatives who inherited the estate under the intestacy rules.

To succeed in a claim, the claimant needs to show that the intestacy rules did not make reasonable financial provisions for them as an unmarried partner. This is why it is vital that if you are in an unmarried relationship, you and your partner make a Will and carry out estate planning.

Protection for you as a cohabitee

Family lawyers understand that financial hardship due to the breakdown of a cohabiting relationship is a realistic possibility. In many cases, the hardship results from property ownership decisions made by the couple during the relationship. If a married couple make the same property ownership decisions during their marriage, the family court has the discretion and power to make orders that it thinks are fair to both husband and wife or both civil partners. In a non-married relationship, a family judge does not have the same degree of flexibility. In cases involving cohabiting couples, the court must divide the property or assets of an unmarried couple based on property and trust law rather than housing or other needs.

The best option for cohabitants concerned about property issues and protection if they split up from their partner is to sign a cohabitation agreement. This document is a form of contract that outlines a couple’s decisions regarding what will happen to their property upon separation. It works like a prenuptial agreement, and if appropriately drafted by a specialist family lawyer, should be upheld by a court. The cohabitation agreement should be accompanied by both cohabitees signing Wills and Lasting Powers of Attorney.

If you need advice on a cohabitation agreement or need legal advice after separating from your cohabitee, Contact Evolve Family Law Today for Cohabitation Law Advice.