Living Together? The Truth About Common Law Marriage

More couples are choosing to live together without marrying or entering a civil partnership. However, the law in England and Wales does not generally treat cohabiting couples in the same way as married couples, regardless of how long they have lived together.

Understanding the legal position can prevent expensive and distressing disputes later.

Does common law marriage exist in England and Wales?

There is no such thing as a 'common law' marriage in England and Wales. Living together does not automatically confer the same legal rights as marriage or civil partnership, although certain rights may arise through contract or by operation of law.

The rules governing marital breakdown do not apply to cohabiting couples, regardless of the presence of children. Property disputes between former cohabitants are decided primarily according to property and trust law, rather than the discretionary principles used on divorce.

What happens if you separate from your partner?

If you are cohabiting and your relationship ends, you have no automatic right to a share of your partner's property or to maintenance or pension claims simply because you lived together.

Where your partner owns your home, you do not automatically have the right to remain in the property as an unmarried partner. However, your legal position will depend on your circumstances, including whether you have established an interest in the property or have other rights of occupation.

Likewise, contributing funds to home improvements, for example, or sharing household bills does not automatically establish a legal interest. Such contributions can, in limited circumstances, give rise to a beneficial interest, but these claims can be complex, uncertain and costly.

What happens if your partner dies without a Will?

If your partner dies without a Will, the rules of intestacy apply. As those rules do not recognise cohabitees as automatic beneficiaries, you will have no automatic right to inherit your partner's estate.

Although a surviving cohabitant may sometimes bring a claim against the estate, litigation is no substitute for proper planning.

A Will can specify who should inherit the home, savings and personal possessions. Couples should also review pension nominations, life insurance and how jointly owned assets will pass on death.

Our Wills and Probate team can provide advice on making a Will and planning for the future.

Protecting your property and financial interests

Couples purchasing a property together should decide whether they will own it as joint tenants or tenants in common.

If their contributions or intended shares differ, a Declaration of Trust can record precisely what each person owns and what should happen if the property is sold.

A cohabitation agreement can provide clarity while a couple are living together, as well as if they separate. It can record responsibility for the mortgage, rent, bills and debts, ownership of belongings and arrangements for the home.

Each partner should provide full financial information and obtain independent legal advice. The agreement should also be reviewed following significant changes, such as buying a property, receiving an inheritance or having a child.

You can find out more in our article on why you may need a cohabitation agreement.

What about changes to cohabitation law?

The Government has considered proposals to reform the law relating to cohabiting couples, including potential financial remedies following separation and changes to inheritance provisions.

However, proposals for reform should not be confused with the legal protections currently available. Couples should seek advice based on the law as it stands.

How Martin Tolhurst Solicitors can help

Whilst cohabitation offers flexibility, it does not provide the legal safety net many people assume. Taking advice early, documenting property ownership correctly and making a Will can provide certainty and reduce the risk of a difficult dispute in the future.

If you are living with your partner or planning to purchase a property together, our Family Law team can help you understand your legal position and explore the steps available to protect your interests.

Contact Martin Tolhurst Solicitors today to discuss your circumstances and find out how we can help.