The Tale of the Common Law Marriage

MCP's Legal Myths and Legends - the Tale of the Common Law Marriage. The number of unmarried couples living together has more than doubled from 1.5 million in 1996 to 3.3 million in 2017. While many still believe in the myth of the "common law marriage" (which doesn't exist), there have been calls for the current law on cohabiting couples to be reviewed. MCP's Legal Assistant Laura Chapman provides an update.

What are the problems?

A recent survey by Resolution, a national organisation of Family Lawyers, revealed that two thirds of couples that live together are not aware that there is no such thing as "common law marriage". Under current law, there are no rights, responsibilities or obligations towards an unmarried partner (unless in a civil partnership), no matter how long they have lived together and no matter whether or not they have children together. It is therefore important that cohabiting couples seek advice and take steps to protect themselves should the relationship break down.

It was found that 84% of people surveyed thought that the government needs to do more to make people aware that cohabiting couples do not have the same rights and legal protection as married couples or civil partners.

What are the facts?

If people are not married or in a civil partnership, these are the sorts of issues that can arise:

No Will, No Way - If one partner dies without leaving a Will, there is no automatic right of the survivng partner to inherit anything from their estate (unless the couple jointly own property).

The Family Home - A partner of a tenant has no rights to stay in the rent accommodation if they are asked to leave, whereas a married partner or civil partner has the right to live in the matrimonial home. If the home is owned, there is no specific law to protect a partner (unmarried or not in a civil partnership) who wishes to stay in the family home following separation. Instead they must rely on either the Trusts of Land Act 1996 to argue they have an interest in the property or the Children Act 1989 to argue the right to remain in the property until the children are over 18.

Financial Support - Married couples/civil partners are legally obliged to support each other financially but this does not apply to unmarried couples.

Children - A partner who stays at home to raise the children whilst the other partner goes out to work cannot make any claims in their own right in respect of maintenance or pension sharing.

How can MCP help?

It is important that anyone in a cohabiting relationship takes steps to protect themselves should the relationship break down. Our specialist Family, Property and Wills & Probate lawyers can provide advice on:

- entering into a Cohabitation Agreement (setting out how the assets are owned and how they will be divided should the couple separate)

- Declarations of Trust (setting out a couple's intentions as to the how the property they buy together will be owned and in what shares)

- drawing up Wills to make provision for the survivng partner and protect them upon the other's death

- separating couples - where you stand and what rights you may have.

If you have any questions or need more information please get in touch - we would be delighted to help. Please contact our Family Lawyers initially.