The is no “Common Law Marriage” in English Law

Alison Fielden & Co December 2019

The number of cohabiting couple families has increased by over 25% since 2008, and has overtaken the number of couples getting married.

For first-time buyers, starting out together in a new home, it is an exciting time and a big milestone on the relationship’s journey which may or may not lead to marriage later down the line.

However, 46% of people* believe that they will acquire legal rights within a cohabiting relationship because of what is referred to as ‘common law marriage’. This myth is founded upon the belief that if you are essentially living ‘as man and wife’ you assume the same legal rights as married couples.

Unfortunately, the tough reality is, there is no such thing as ‘common law marriage’ and cohabiting couples do not have the same legal rights as married couples.

This harsh reality often comes to be realised at the time of relationship breakdown or on the death of one of the couple. Both are times which are stressful enough, without worrying about your financial security. One common problem is that one of the couple dies without a Will naming their partner. This means they are not automatically entitled to their assets or to stay in the shared home (unless the assets or home were jointly owned). Another is where one person has lived for many years in a property owned by the other, contributing to the family finances, only to find on breakdown of the relationship that they may have no financial interest in the property and limited right to remain living there.

Similarly, a cohabiting father (not named on the child’s birth certificate) would not have the same automatic parental responsibility rights as a father married to their child’s mother.

What Can I Do to Protect My Rights?

• Talk to each other to establish how you would both want protection if unforeseen events were to happen.
• Ensure that assets utilised by both of you, such as bank accounts and properties are held in joint names. This means that both parties will have an interest in the asset should the relationship break down or one person dies.
• Seek legal advice and enter into a cohabitation agreement. Such an agreement sets out the nature of your financial relationship and establishes your rights should that relationship break down.
• If you wish to pass assets to your partner on your death, make sure that you have a Will in place.
• Regularly review both your cohabitation agreement and your Will, particularly at key milestone times such as having children, buying another property, inheriting wealth or if you do decide to get married! Regular reviews ensure that the documents still appropriately address your needs and deal with all of your assets, not just some of them. Not many people know, for instance, that a Will automatically becomes worthless if you marry after making it, unless the marriage is specifically provided for in the Will itself.

A Conversation Worth Having

Recognising that having a frank discussion now could save you both a lot of distress and cost further down the line is worthwhile, and hear at Alison Fielden & Co our expert lawyers, Heather Weavill and Steven Barratt are able to guide you through this sensitively and practically. Please ring 01285 653261 for an appointment.

Alison Fielden & Co are once again proud to be a main sponsor of the Cirencester Advent Lights.