Beware of the ‘Common Law Marriage Myth’

The Common Law Marriage Myth
The Common Law Marriage Myth

Unfortunately, there is a surprisingly widespread assumption that long standing cohabitants (unmarried couples who live together) acquire similar legal rights to married couples, or those in civil partnerships.

However, this is not the case. There is no such thing as a common law marriage. Cohabitants do not have the same rights as married couples or civil partners, nor do they have any financial claims on their partner’s assets.

If an unmarried couple live in a property owned solely by one party (without any other agreement in place) or in a rented property where only one party is named on the rental agreement, the other party will have no automatic right to remain in the property if their partner asks them to leave.

An application to the Court for an order giving the right to occupy the property can be made, but the outcome of this application is uncertain and expensive.

Any savings, assets or pensions held by one unmarried party will not be shared with the other. It is possible for an application to be made to the Court for financial provision in certain situations where there are children involved, but such orders would be for the benefit of the children only. There would be no entitlement to maintenance (except for child maintenance) as would be available for a spouse, because neither party acquires legal rights and responsibilities towards the other.

If one cohabitant dies without having made a Will, the surviving cohabitant will not have an automatic entitlement to inherit from their estate. This can be devastating if the family home is in the deceased’s sole name (or owned jointly as tenants in common). The surviving cohabitant would need to make an application to the Court for provision out of the deceased’s estate which is again an uncertain and costly process. Therefore, it is important both cohabitants make a Will to ensure their estate passes in accordance with their wishes.

Unfortunately, the current situation in England and Wales gives little or no protection to unmarried couples when they separate, and often, creates injustice and hardship. Whilst there has been discussions regarding a change in the law, no change has yet been made. Therefore, it is strongly advisable for cohabitants to enter into a contract (known as a Cohabitation Agreement) with their partners, which can set out how money and property should be divided upon separation as well as issues concerning the children.

This article is written for general information only and should not be relied on without specific advice. For further advice, call Carey Vigor at Sumner & Tabor – a trading name for Machins Solicitors LLP – on 01442 872311.