Unmarried couples and legal rights: the myth of common law marriage

Year Published: 2022

Unmarried couples living together, are you aware your legal rights are not the same as a married couple?

Cheryl Haywood in our family team explores the myth of common law marriage and outlines why you may want to consider a cohabitation agreement.

 

Even though the principle of common law marriage hasn’t existed since 1753, I still have clients come to me under the impression that, because they have been in a relationship for a significant period of time, they have acquired similar rights to those of a married couple. This is incorrect.

Unmarried couples living together (cohabitees) 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. Cohabiting couples do not. Some areas to note are:

  • On divorce the court can award spousal maintenance from one to the other to meet needs, but cohabitees cannot claim spousal maintenance;
  • Cohabitees cannot claim pension provision, whilst on divorce pension sharing orders are often made;
  • With regard to property, on divorce the court can and frequently does transfer property from one spouse to another irrespective of ownership. With cohabitees the court has no power to readjust ownership between the parties and 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.

So where does this leave unmarried couples when it comes to legal rights? This legal landscape very clearly places separating cohabitees at a great disadvantage when compared to married couples and it is therefore always beneficial for cohabiting couples to enter into a cohabitation agreement setting out what would happen to your assets on separation if this should occur.

There are proposals being put forward to give cohabiting couples more rights on separation; however the Cohabitation Rights Bill has not yet been passed and we do not have a timeframe for implementation.

For more advice regarding unmarried couples and legal rights, cohabitation agreements or separation please contact Cheryl Haywood on 01260 282314 or [email protected].

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