Common Law Marriage Rights: The Common Misconception

Year Published: 2015

In my experience many couples believe that if they live together for some time they are in a common law marriage with the same rights as if they were legally married. This is false as common law marriage has not existed since 1753.

In reality cohabitants living together outside marriage are treated in law as two separate individuals and have no automatic rights against the other if they split. This is in direct contrast to married couples.

Married couples have rights to a fair division of assets to meet their needs whether these are owned jointly or solely. Cohabitants do not. Some areas to note are:

  • On divorce the court can award spousal maintenance from one to the other to meet needs, but cohabitants cannot claim maintenance;
  • Cohabitants cannot claim pension provision, whilst on divorce pension sharing orders are often made;
  • In regard to property and the parties’ home, on divorce the court can and frequently does transfer property from one to the other irrespective of ownership. Cohabitants’ property rights remain the same after their split as before, and the court has no power to readjust ownership between them. Proving to the court that one party has acquired ownership rights during the relationship can be difficult and costly.

It is only in respect of the children of a relationship where there are similar rights to claim child support and additional financial assistance restricted to benefit the children.

This legal landscape very clearly places separating cohabitants at a great disadvantage when compared to married couples.

Can this be protected without marriage?

Yes, through a carefully prepared Cohabitation Agreement. No one, however, should attempt to prepare such an important legal document without specialist advice, it is unlikely that the court will enforce the Agreement otherwise.

For further information on Cohabitation Agreements or Common Law Marriage, please contact our Family Law team on 0161475 7676.

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