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19th October 2023

The myth of common law marriage

The myth of common law marriage

Many assume that after a certain period of time, living together automatically leads to a 'common law marriage'. 

This misunderstood concept leads to an, entirely mistaken, belief that cohabiting couples enjoy the same legal benefits as those who are married or who have entered civil partnerships. 

However, common law marriage is, in fact, a complete myth and holds no legal standing in England and Wales. Cohabitants (meaning people who live together but are not married or in civil partnerships) have no legal rights in relation to their partner's finances, inheritance, or property, in the event of a relationship breakdown.

The number of couples living together without getting married has increased by 144%, going from about 1.5 million in 1996 to 3.6 million in 2021. An even more startling statistic is that more than half (51.3%) of babies are now born to couples who are not married. Research suggests that many of these couples choose not to marry because they believe that existing laws are capable of protecting them. Sadly, the harsh truth that they do not often becomes apparent when a relationship falls apart. 

Academics and legal practitioners have long called for a reform of this area; proposals have been made by the Law Commission, and two Bills have even been introduced into Parliament, neither of which became law. Regrettably, no substantial changes have been made to date. 

Things may be about to change. Last week at the party conference in Liverpool, the Shadow Attorney General, Emily Thornberry, proposed sweeping reforms in the area of cohabitation, aiming to provide more rights and financial support to the more vulnerable party (the vast majority of whom are women) when cohabiting relationships come to an end, although specific details about the Labour policy and the model it intends to adopt have not yet been released. 

We can only hope that this will lead to legislation in time. Until then, it remains necessary to take whatever steps are available to create certainty about financial and property arrangements both during a relationship and in the event of its breakdown. 

The main vehicle for this is entering into cohabitation agreements which can cover such matters. A cohabitation agreement is a contract, and enforceable as such and can provide protection which is so often necessary where the parties do not wish to marry or enter a civil partnership, which (pending cohabitation legislation) remains the most effective protection of all. 

In relation to inheritance (another area in which cohabiting couples do not have automatic rights) a Will is essential.

It is useful to remember that some cohabitants may have property rights to the home, but this depends on factors like financial contributions, intentions, and agreements made during the relationship. To secure these rights, cohabiting couples should consider entering into a deed to formally establish what property rights exist.

The message must go out that cohabitants do not enjoy the same automatic rights as their married counterparts, and that steps should be taken to provide protection that the economically weaker party often needs if a relationship breaks down. At Hunters we are experienced in advising in these circumstances.