The 'Common Law Marriage Myth' and the Law

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The number of unmarried cohabiting couples has almost doubled from 1.5 million in 1996 to 3.3 million in 2017. A recent survey showed as many as two in three cohabiting couples are unaware that there is no such thing as a ‘Common law Marriage’ in England and Wales. This misunderstanding can cause significant problems especially when dividing up finances, often leaving people with no entitlement to what they thought as joint assets.

If the relationship ends, under current law it possible to live with someone for decades and simply walk away without taking any responsibility. In most circumstances, it can lead to injustices for parents and children, particularly in cases where a parent has given up or reduced their work to raise a family and become a homemaker.

The government is now being pressured to listen to public opinion, legal professionals and a growing number of politicians who all agree that there is a need for reform to provide basic rights to cohabiting couples should they separate.

Cohabiting vs marriage: Six ways your rights differ

If one cohabiting partner dies without leaving a will, the surviving partner will not automatically inherit anything - unless the couple jointly own a property. A married partner would inherit all or some of the estate.
An unmarried partner who stays at home to care for children cannot make any claims in their own right for property, maintenance or pension-sharing.
Cohabiting partners cannot access their partner's bank account if they die - whereas married couples may be allowed to withdraw the balance providing the amount is small.
An unmarried couple can separate without going to court, but married couples need to divorce in order to end the marriage formally.
Cohabiting couples are not legally obliged to support each other financially, but married partners have a legal duty to support each other.
If you are an unmarried partner of the property owner or rented property, you have no right to stay in the accommodation if you are asked to leave - but each married partner has the right to live in the "matrimonial home" until financial claims have been dealt with.

If you are cohabiting, but not keen to marry or have a civil partnership, there are steps you and your partner can take to arrange your financial affairs sensibly and to give you the protection you need should your relationship breakdown.

Draw up a Will. If you are cohabiting, it is essential you have a valid Will in place as cohabitees do not automatically have rights to their partner’s estate if they die without leaving a Will. The key is to draw up a document setting out what you want to happen once you are no longer around.
Consider writing up a cohabitation agreement. This can be competed with the assistance of a family solicitor. Within the agreement you can set out exactly what assets each partner is bringing to the relationship and how they should be divided should the relationship breakdown. This can include property, its contents, personal belongings and savings. It can also set out how much someone has contributed to a mortgage deposit and repayments.
Use sound legal structures for property contracts by way of a conveyancing solicitor. When buying a home together cohabiting couples should decide whether to arrange the contract as joint tenants or tenants in common. Under joint tenancy both partners own the whole property.

Here at Emery Johnson Astills, our focus is on client care, ensuring that we assist and support every client from initial advice through to Court proceedings, if appropriate. If you require expert legal assistance relating to family matters, contact a member of our Family Team. We are also CQS accredited and have a specialist conveyancing team who will be there for you at every step of the way, at what can be a very stressful time. If you are buying and/or selling a house and need assistance, please contact the Conveyancing team for a no obligation quote. We also have a dedicated Private Client Team who would be more than happy to assist you with making your Will to ensure that your wishes are carried out when you die. We make every effort to make you feel comfortable with the process of making a Will and we always ensure that you fully understand the “legal jargon” in your Will. You can contact us on 0116 255 4855 or by contacting by email on legal@johnsonastills.com