The Myth of the Common Law Marriage

As experts in family law we’re used to explaining people’s rights and responsibilities to them, particularly in relation to marriage, divorce, wills and probates and children disputes. One of the things we’ve become used to telling people is that the concept of common law marriage is, in fact, a myth. Put simply, the idea of common law marriage is that if two people live together as if they were husband and wife then, over time, they will be granted the same legal status as a married couple or one in a civil partnership. Unfortunately, for those who depend upon it, this is not the case.   

There are many different ways in which the rights of people living together, thinking they are in a common law marriage, differ from those who have entered a legally binding partnership. Perhaps the most serious of these is the fact that if one partner dies without leaving a will, the cohabiting partner won’t automatically inherit anything, with the exception of any jointly owned property. A married partner, on the other hand, automatically inherits all or some of the estate. At the same time, a co-habiting partner will not be able to access a partner’s bank account if they die, and unmarried couples have no legal duty to support each other financially.   

Other legal drawbacks of being in an unmarried couple include the fact that a partner who stays at home to care for children has no claims on property, maintenance or sharing a pension, and if your partner was the tenant of your home and they die, you will have no right to stay in the property if you’re asked to leave. Married partners, on the other hand, are entitled to stay in the matrimonial home.  

Much of this often comes as a shock to co-habiting people who, during the trauma of bereavement, find out that so called common law marriage entitles them to very few of the rights of a married person. Some people, however, may have their own very good reasons for not getting married or entering into a civil partnership, and for people such as these we always recommend coming in to the office to discuss a cohabitation agreement.

We’re experts at drawing up documents such as cohabitation agreements and prenuptial agreements, and pride ourselves on the fact that we help people to feel much more secure than the idea of common law marriage ever would. An agreement such as this is a legally binding document drawn up with the input of both partners in a relationship. It can cover aspects such as who pays particular debts, what will happen in the couple separates, who owns what share of any property, and who will be nominated for any death-in-service benefits. The agreement could also specify that assets which each partner brought into the partnership remain their sole property, while those that were acquired after cohabitation become joint property, and debts accrued after cohabitation are also joint.

Both parties to a cohabitation agreement have to take independent legal advice, and we’re happy to offer advice which will ensure the agreement in question is designed to protect both parties and outline exactly what will happen in the event of a break up. The concept of common law marriage causes nothing but confusion and often trauma in the event of a relationship breaking down, whereas a cohabitation agreement keeps things clear and easily understood, and also creates a record to refer back to in the event of any disputes.    

If you’d like to learn more about the pitfalls of common law marriage, or how useful a cohabitation agreement can be, then please call us on 0161 429 7251 or email us at [email protected]. We’ve recently passed our Cyber Essential accreditation, a clear sign of our forward thinking attitude and determination to remain ahead of the competition. We offer a 20 minute appraisal free of charge, and if you want to find out more we’ll provide a first appointment for a fixed fee, so there’s no concern over how much our advice is going to cost. If you want to find out more about our wider charging system then please take a look here.     


August 21, 2018


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