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Let's be clear about Common Law marriage

View profile for Deborah Nicholson
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Millions of unmarried couples who live together could be unaware of their rights if the relationship breaks down. Despite what many believe – and around one in four people living together think they have the same legal protection as married couples – there is no status in English law as a common-law spouse or partner. 

Despite the number of unmarried couples having doubled since the mid 1990s, virtually nothing has changed in how the law treats cohabiting couples and their property if they separate.  Basically, the law does not recognise any meaningful way of living together in a relationship outside marriage or civil partnership.  If the cohabiting relationship breaks down there is very little protection for the weaker partner, particularly the woman, who often has children.  As a result, some cohabiting families can find themselves facing real difficulties should they separate, particularly when children are involved. 

In England & Wales, when married couples divorce or civil partners break up, both parties have a legal right to maintenance and their share of assets, including property and inherited property.  The court has complete discretion to take all the circumstances and history of the relationship into account in deciding on a fair division.  Cohabiting couples have no such rights regardless of the number of years they have been together and whether they have children.  An unmarried partner who stays at home to care for children cannot make any claims in their own right for property, maintenance or pension-sharing. In limited circumstances a claim can be made on behalf of the children.

There are other ways that cohabiting couples’ rights differ from couples who are married or who have entered into a civil partnership. If one cohabiting partner dies without leaving a will, the surviving partner will not automatically inherit anything- unless the couple jointly own property. A married partner would inherit all or some of the estate. 

Where cohabiting couples jointly own their family home, in English Law, the property will normally be divided 50-50, unless they have made a written legal agreement at the time of purchase saying in what proportions they own it.

It is vital that couples who chose not to obtain legal recognition of their relationship – whatever the reason may be – take other steps to protect themselves and they consider co-habitation agreements, properly executed wills, and ensure that all paperwork is up to date, for example pension scheme beneficiary nomination forms. These will help should the worst happen.  Unromantic as it may seem, these additional steps are the only way to ensure protection should partners separate or should a partner die.